On the eve of the beginning of The Hague cases, opinion is still divided whether or not President Uhuru Kenyatta and Deputy President William Ruto should attend their trials before the International Criminal Court (ICC).
The National Assembly has made clear its preferences on this question by passing a second Motion calling on the government to withdraw the country’s membership of the Rome Statute, the system that set up the ICC. So, should Mr Kenyatta and Mr Ruto attend trial or should they defy the court?
I have found possible answers to this question in the record of the first presidential debate that was organised by the Kenyan media in the run-up to the March elections. The moderator, NTV’s Linus Kaikai, explored the question of the trials with Mr Kenyatta against the fact that he was seeking to become president of Kenya. Specifically Mr Kaikai wanted to know how Mr Kenyatta would juggle between attending his trial and the duties of presidency if he was elected to office.
On the night, Mr Kenyatta provided well-considered answers to questions surrounding their cases and the presidential bid. Referring to himself and his running mate Mr Ruto, Mr Kenyatta indicated that “it is our intention to follow through [the cases] and ensure that we clear our names”. He added that he considered accountability before the ICC as a necessary step towards ensuring that the kind of problems that Kenya faced in 2007 would not recur.
In his own words: “At the same time, we are offering ourselves for leadership in this country, a position that we believe and want to pass on to Kenyans, an agenda that will first and foremost ensure that the kind of problems of 2007 are put to an end.”
Asked whether the cases would affect his capacity to run the country, he said, “many Kenyans are faced with personal challenges and I consider this as a personal challenge”.
He said he considered that since personal challenges did not affect the capacity of other people to continue with their day-to-day jobs, they should not prevent him from doing so as well.
On that night, Mr Kenyatta concluded: “I will be able to deal with the issue of clearing my name while at the same time ensuring the business of government is implemented”.
Earlier, during the same debate, in answer to a question about his understanding of the problem of tribalism and how he would be different from Kenya’s first three presidents, Mr Kenyatta answered that “we have a new Constitution now” and added that “my job as president is to ensure that the Constitution is implemented”.
In the presidential debate, Mr Kenyatta sent three clear messages regarding the cases at The Hague. First, that he and his running mate were committed to accountability through the ICC process, because they considered it important to clear their names; second, that they considered their engagement with the ICC as a private matter for the two of them, as opposed to a public problem for the Kenyan state; and third, that they would uphold the Constitution if elected to office.
And so, one reason why Mr Kenyatta and Mr Ruto should attend their trials before The Hague is that, as part of their campaign for the presidency, they made a high-profile promise to do so. The new morality that their kusema na kutenda (saying and doing) mantra brought, binds them to honour their dates at The Hague.
At that time, they made it clear that their trial before the ICC was a personal problem that had nothing to do with the Kenyan state. It would be a breach of trust if, having achieved the control of the state, they now turn around and use it to shield themselves from accountability before the ICC.
Mr Kenyatta was clear that clearing his name was important for his personal standing and legitimacy. This surely remains the case, more so because he is now president. It is not just Mr Kenyatta and Mr Ruto that have an interest in clearing names. The general population, much of which is law-abiding, expects no less from its leaders.
More importantly, clearing their names would be a mark of respect for the many victims of the horrendous crimes that have occurred in this country, for which there has been little accountability.
Failure to attend trial would have significant problems for the country. It would be disrespectful of the victims of the post-election violence, and would denude the young government of the legitimacy it needs to govern. It would change the nature of domestic politics considerably, as it would trigger the issuing of arrest warrants against the two, which would then cage Mr Kenyatta and Mr Ruto in the country, for fear of arrest if they travel abroad.
This is what has happened to President Omar al-Bashir of Sudan whose last foreign trip this year, a visit to Abuja, which was designed to be a brave statement of defiance of the ICC, turned into a humiliating escape from Nigeria, when he got wind that local civil society organisations were planning his arrest there.
Kenyans would not want their president to live a life that necessitates escapes from foreign capitals. Finally, failure to attend trial would turn Kenya rogue, creating the need for a Kenyatta/Ruto life presidency, since if they defy the ICC, they must then retain power forever to remain safe from arrest.
At another level, poverty is Kenya’s greatest problem. The delivery of citizens from its bondage remains the most critical duty of government. It is unlikely that a government fighting ICC arrest warrants can deliver the country from poverty.
The problems of Zimbabwe, where a rogue government is in power, demonstrate the linkages between political legitimacy and economic stability. In 1980, President Robert Mugabe inherited one of the best-run countries in Africa. Whatever its other effects, the internal strife in Zimbabwe has ruined the country economically. Today, 1.5 million Zimbabweans live in South Africa, as illegal immigrants, dislocated from their country by economic factors.
If the president and deputy refuse to go to The Hague, the Jubilee manifesto cannot be delivered, and Kenya can forget about all its ambitious economic plans.
George Kegoro is executive director, International Commission of Jurists (Kenya)