Ambassador Amina Mohammed, the Foreign Affairs Cabinet Secretary, is correct: in recent times there has not been a single sitting head of state tried in any court in the world. Hosni Mubarak and Mohammed Morsi, both former heads of state of Egypt, were deposed before legal proceedings were initiated against them. Regardless of the accusations against President Kenyatta, and regardless of the fact that he was indicted before the was elected President of Kenya, this is an unprecedented situation globally and everyone is on a steep learning curve when it comes to how to deal with it.
President Kenyatta is a head of state in one of the most volatile regions in the world. Kenyans, especially those in the burgeoning civil society industry, may seem to confuse the relative calm in Kenya as a fact of life, but the events of the past month should disabuse them that our enemies will sit patiently while the nation deals with the fallout from the President's trial at The Hague. Our enemies will take advantage of the complexity of managing the affairs of state while simultaneously worrying about the liberty of the President and Deputy President.
This is not to argue that the President should not be tried; far from it. Secretary Mohammed alluded to it too. If Mr Kenyatta is to undergo trial, the International Criminal Court must not ignore that Mr Kenyatta is President, and that his trial is unprecedented.The Court should not impose its will without flexibility; the fate of over forty million Kenyans hangs in the balance.
Mr Kenyatta, until he loses the next election or he is impeached, remains the Head of State and Commander-in-Chief of the Defence Forces. There are certain decisions that only he can take; there are certain function that only he can perform. These are decisions and functions that cannot be delegated. That he and his deputy are being tried means that the situation is much more fraught than even civil society champions acknowledge. Despite the fact that Raila Odinga came as close as he has ever came to winning the presidency, he cannot replace Mr Kenyatta if Mr Kenyatta is otherwise detained by the ICC. That is not how the Constitution of Kenya works. Neither can a member of the Cabinet, the Chief of Defence Forces, the Speakers of Parliament, one of the 47 governors or the remaining Members of Parliament.
Kenya faces a constitutional problem that must be resolved in the least traumatic way possible. Secretary Mohammed has suggested that Mr Kenyatta's, and perhaps Mr Ruto's, trial be suspended until he finishes his term as President, which may be in 2017, or in 2022 if he is re-elected. Civil society, predictably, is opposed to this, but it also fails to propose an alternative that does not upend the proper constitutional order in Kenya. Now that al Shabaab has decided to bring its war to Kenya, to kill and maim with impunity, and to sow confusion in Kenya, whom do the civil society propose to right the ship of state when the President and the Deputy President are unavailable? The Constitution provides no answer, and neither does civil society.
They cannot also argue that we made our beds and we must now lie in it. That is an argument that will only find favour in a children's sand-box. We are facing a problem that will affect the lives of the same men and women the civil society industry says it speaks for. If they are determined to reject the idea that the trials should be delayed, they must propose a solution that leads to justice for the victims but also preserves proper constitutional order, the integrity of the nation and the safety of the people. Saying "I told you so!" in a hectoring tone will not help.
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