Even in a presidential government, there is nothing unusual with the deputy President standing trial; after all, the Deputy President is not the Commander-in-Chief, does not appoint the heads of various departments or ministries, is not the Chairman of the National Security Council, and is not a symbol of national unity, all things that the President is. The trial of a sitting head of state, head of government, Commander-in-Chief and a symbol of national unity is bound to send us into uncharted territory, where prudence demands that only an objective examination of the landscape will serve us well. Emotion and similar biased criteria risk sending us off constitutional cliffs that we are blind to.
But first, we must dispense with the idea that the accused in the ICC Kenya cases do not have a right to pursue every available course to avoid trial or win acquittals. When Uhuru Kenyatta declared during the first presidential debate in 2012 that his tribulations at The Hague were a "personal challenge" that he would overcome, he probably meant it at the time. But this blogger suspects that t was a clever line designed to win him the presidency, which it probably contributed to. Messrs Kenyatta and Ruto have a constitutional right to fight for their innocence, or acquittal, at The Hague. If they choose to use the instruments of power handed over to Uhuru Kenyatta by Mwai Kibaki, then so be it. It is up to the people to determine whether the use of those instruments of power for the resolution of "personal challenges" is constitutional and then what the people can do once they decide that such use of the instruments of power is not constitutional. What the people cannot do is prevent the President and Deputy President from defending themselves with everything in their reach from being tried or being convicted by the International Criminal Court.
When they were first indicted, Uhuru Kenyatta and William Ruto were mere ministers. Uhuru Kenyatta was the Deputy Prime Minister and Minister for Finance while William Ruto was the Minister for Agriculture and, later, the Minister for Higher Education. Their fate was not a constitutional conundrum; the only issue to be resolved then was whether they'd resign their Cabinet positions after their indictments. That is no longer the case. Messrs Kenyatta and Ruto are the President and Deputy President, the principal figures in the National Executive in the Government of the Republic of Kenya. There is no escaping this simple, constitutional fact. Whether they were indicted before or after their election, they will be tried as head and deputy head of state. That raises serious constitutional challenges, especially with the trial of the head of state.
If it was just one or the other undergoing trial, then the provisions of Articles 144, 145 and 146, depending on the circumstances, would apply regarding the succession of the President and Articles 149 and 150 regarding the replacement of a Deputy President. The present circumstances have the very real risk of a conviction of both the President and Deputy President, which would allow for the impeachment of both by Parliament. If the President alone was standing trial, and he was convicted, and then he was successfully impeached by Parliament, then the Deputy President would succeed him. If it was the Deputy President alone who went to through a similar experience, then the President would nominate a new Deputy President, who would be elected by Parliament. But when both risk being convicted or impeached, the succession becomes a very knotty affair. The succession of the Speaker of the National Assembly if both the President and Deputy President, albeit for sixty days only, will not go down well with the people. Not at all.Article 103, on the vacancy of the office of Speaker (and Deputy Speaker) is silent on a vacancy being created because the Speaker is the Acting President; there is the possibility that the Speaker will be the Acting President, a conflation of both the legislative and executive functions of government in one individual.
But those are just the politico-legal considerations that must be addressed. Then there are the sociopolitical ones. No one seems to want to address that the reason we are having this debate is because of political events exploited by the two to their advantage. The narrative all along, especially from the principle actors and their intellectual cheerleaders, is that the "peace" between the Kikuyu and the Kalenjin is because the President and Deputy President are "sharing power." If one is convicted and the other is not, will it be seen as a betrayal of one by the other? If both are convicted, a presidential election is held, and a person from a "tribe hostile to both" is elected, will the unity of the two hold and will their political rivalry be rekindled? If both are convicted, will the government, of which they remain head of until they are removed, co-operate with the ICC and hand them over to serve sentence? The President is a symbol of national unity; does it mean that with his conviction, Kenya will not have a symbol of national unity?
What will be the fate of the thousands of persons suspected of having committed crimes during the PEV and who have not been tried for lack of credible investigations? Will the conviction of the President and Deputy President lead to a reopening of the case files? And what about the fate of the victims? Will a conviction mean that many will now finally recover their properties and restore their lives to as normal as possible a situation?
It is not enough to insist that the President must go to The Hague. It is not enough, not at this level, to insist that justice for the victims overrides all other considerations. Neither is it enough to claim "sovereignty" as a reason for the President not to go. Nor is it enough to claim "criminal immunity" neither. We must go beyond the rhetoric and assess the myriad possibilities of one even or the other. If we can do that, then we can anticipate the challenges of governance that are headed our way and propose solutions to them. Secretary Mohamed has already floated the trial balloon of the President being allowed to serve out his presidential term before the trial can be held. She has advanced her reasons. Some are persuasive, some are not. The other side must advance a counter-argument that anticipates the same things that Secretary Mohamed does.