If Uhuru Kenyatta and William Ruto want to stand for the presidency, why shouldn't they? Mr Charles Nyachae and Prof Githu Muigai, in rare unanimity, both contend that they can. Mutula Kilonzo, speaking as an advocate of long standing with decades under his belt as sharp legal eagle, thinks otherwise. Certainly, Mr Kenyatta and Mr Ruto do not see any valid reason why they should put their political ambitions on hold simply because a court located thousands of miles away wishes to try them for crimes against humanity and other international crimes. The loud voices of civil society ensured that Mr Kenyatta and Amb Francis Muthaura stepped aside as Finance Minister and Head of the Civil service largely because the International Criminal Court's Pre-trial Chamber II confirmed charges against them. But, should they have resigned?
Three years ago, the President, the Prime Minister, two successive Justice Ministers and a Member of Parliament attempted to establish a local tribunal to try the alleged perpetrators of the violence that rocked the country after the 2007 general elections. All their attempts were in vain; many Parliamentarians were persuaded, largely through Mr Ruto's rhetoric, that The Hague was the better option. They saw in the President's and Prime Minister's attempts to set up a local tribunal a naked attempt by the Prime Minister to lock them up and prevent them from what they saw as rightfully theirs: the Presidency. However, when it became apparent that The Hague Option would be exercised sooner than they had hoped, they changed the narrative, blaming the PM for their legal woes. Be that as it may, who is right on the question of whether Mr Ruto and Mr Kenyatta can put themselves forward for the presidency?
Listening to the lawyers and law scholars, one is left even more confused. The law, even the Constitution, gives no satisfactory answers. They all point to different articles in the document to show why their argument should carry the day. This is the legacy of twenty-four years of KANU rule. When President Moi succeeded Mzee Jomo Kenyatta in 1978, not even he dreamed that he would remain at the helm for that long. If he had not faced resistance from certain quarters at every turn, and if he had not faced an attempted coup, perhaps he would have ruled with a much lighter hand, leaving the possibility of a less fractured political system. But, as they say, that is so much water down the Nile.
Today, one will be hard-pressed to find a politician in and out of Parliament who would struggle to satisfy the strict leadership and integrity tests prescribed by the Constitution. In Parliament today are politicians who before they were elected had been accused and convicted of financial crimes, were instrumental in fomenting violence against 'outsiders' in their communities, were the beneficiaries of questionable (illegal and irregular) government contracts, and all sorts of malfeasance. They have been elected and re-elected at least once. The people who sent them to Nairobi are not ignorant of these facts and have willfully chosen to ignore them. So why should civil society purport to speak for the voters when they state with finality that the DPM and the Eldoret North legislator cannot stand for high public office?
Presumably, the millions of Kenyan voters anxiously awaiting a date for the elections are alive to these facts too. If they are convinced that it is not wise or proper to have men accused of heinous crimes as their fourth president, they will demonstrate their choices by electing someone else. The ballot is the ultimate opinion poll. Not even Messrs Uhuru and Ruto can escape its verdict. Even the church leadership has largely avoided this debate, perhaps because it is not as moral as it presumes to tell us it is. They chose sides last time around; they chose sides during the violence and one presumes they will choose sides this time around. The morality of the question is a red herring that will be ignored, all politics being local. So, even if the two and their other two co-accused, stand trial at The Hague, and are convicted, I do not see them packing it in and leaving the field to their competitors. They intend to stay the course, regardless of what the mighty civil society says or does. After all, other than the scale of the accusations, what is so different this time around that we have not witnessed in elections gone?
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