Analysts have sounded the alarm over a possible paralysis in government when the trials of President Kenyatta and deputy William Ruto at ICC begin.
Mr Ruto is expected to appear in The Hague for the opening session of his trial on September 10 while Mr Kenyatta will appear before the court on November 12.
On Thursday, the ICC trial chamber rejected Mr Ruto’s request to hold the proceedings for two weeks followed by breaks of a similar period and stuck to its three-week plan.
Judges had on Monday voted against Mr Kenyatta’s request to have trials moved to either Kenya or Tanzania.
The proceedings in The Hague will inevitably grip the attention of the nation and could prove one of the biggest tests for the Jubilee administration yet.
Coupled with this is the impending mini- General Election once petitions across the country are concluded in October— a development that will re-ignite the bitter rivalry between Cord and Jubilee coalitions and drive the country into fever pitch.
Seventy MPs and half of the 47 governors are fighting for their political careers after their election on March 4 was challenged. A significant number of the petitions could be determined in the next one month.
Already, courts have annulled the election of two MPs and a governor— signalling that a big number of the more than 100 politicians could be kicked out of office. This could trigger anxiety among Jubilee supporters due to the inevitable absence of one or both of the generals on the campaign trail.
Some contend that Mr Ruto’s absence will take gravitas from the Jubilee campaigns as he is seen as the one who could counter an increasingly resurgent Cord leader Raila Odinga. It is instructive that the DP has in recent days heightened political activity, culminating in wresting Jubilee senators from the referendum train and making inroads into Cord’s strongholds of Coast and western Kenya.
Mr Ruto will, however, be leaving a headache behind in his backyard in the name of the combative Bomet Governor Isaac Rutto who has defied all entreaties to drop the referendum bid.
Initially pushed by senators and governors led by Mr Rutto to take more resources to the counties, the clamour for a constitutional change has also been seized by Mr Odinga, who still commands support in many parts of the country. This poses a new challenge of how to either tame him or work with him. Mr Odinga and a section of civil society want a new presidential system to “tame the tyranny of numbers.”
“Of course all functions of government will be operational but in a situation where sections of the Opposition and government are asking for a referendum and hammering it, and the President is not around, the country can be unstable,” Law Society of Kenya chairman Eric Mutua said.
He said the indications, so far, were that only one of the Big Two could be away at any given time, but added that were they both to be away, the Speaker of the National Assembly and the National Assembly Majority Leader— who are number three and number four in the political pecking order— might lack the requisite clout for the task.
“The president can of course assign all functions except the constitutionally excluded ones to his deputy but the pragmatic aspect of the debate is that as a unifier of the country, the president’s role cannot truly be performed by anyone else.”
Former Subukia MP Koigi wa Wamwere asked National Assembly and the Senate to debate whether the President and the DP should step down for the time of their trial at The Hague, and have numbers three and four in the constitutional hierarchy of State power take charge until the trials are over.
“If I could not govern my home through proxy when I was in detention, how can Uhuru and Ruto govern Kenya from a remand prison—not at Kamiti Prison but 2,000 kilometres away in The Hague via Skype?
Others contend that the trials could also test the legitimacy of their presidency, a situation which could strain the current cordial relations Kenya is enjoying with the West.
“Although polls show that support for the ICC has gone down, when the cases start and the evidence is laid out, there will be significant distraction. As the cases go on, Western nations will be watching and that will have a bearing on their approach to Kenya,” said Dr Adams Oloo of the University of Nairobi’s Political Science Department.
Challenges on the domestic front include the fear that the economy and the implementation of flagship projects of the Jubilee administration could be pushed to the back burner.
A recent Synovate poll showed that a high number (54 per cent of respondents) rate the high cost of living as a big problem compared with 39 per cent in November 2012.
But the government side has put on a brace face, insisting all will be under control in the absence of any of the big two.
Elgeyo Marakwet Senator Kipchumba Murkomen and Oljororok MP John Waiganjo said service delivery would not be hampered at all by the President and the DP’s absence since the Executive, the Legislature and the Judiciary were fully constituted.
But an MP who sought anonymity said Jubilee MPs were plotting to bring a motion in Parliament asking Mr Kenyatta and Mr Ruto not to attend the sessions. This, analysts say, could attract sanctions.