5 Million "Strong" Signatures: - Let the People Decide: Every Citizen is Free to Make Political Choices

Let the People Decide: Every Citizen is Free to Make Political Choices

This Petition seeks to demystify this issue of whether the confirmation of charges against Hon. William Ruto and Hon. Uhuru Kenyatta can affect their eligibility to run for presidency.

When the ICC Pre-Trial chamber commenced its confirmation hearings against Hon. William Ruto and Uhuru Kenyatta et al; debate was triggered in Kenya as to whether the suspects were eligible to continue holding Public Office (five of the six suspects were holding positions in government) and if they could continue in these positions or seek elective or appointed offices in the event that the charges were confirmed.

It should be noted that many commentators both in the mainstream media as well as in the blogosphere have taken it as a foregone conclusion that in the event the charges are confirmed, the accused are ineligible to contest for any public office.

It should be noted that the outgoing ICC Prosecutor Mr. Luis Moreno-Ocampo has repeatedly called on the Government of Kenya to suspend or preferably dismiss the five suspects who hold Public Office from their positions. It is instructive that he has made these requests to the Government of Kenya rather than seeking a Court Order to that effect from the ICC.

The reason for this is that the Rome Statute does not have any provision that bars a suspect or even an accused person from holding Public Office in their country. The Rome Statute only provides that arrest warrants may be issued against a suspect or an accused where that person does not honour summons to appear or where that person directly or indirectly interferes with the court process, witnesses or evidence.

It is a long established principle of International Law that the operation of International Justice proceedings does not prohibit an individual accused or sought for crimes from running for or holding political office. This is left to be determined by the national laws of the state where such person hails from.

International Criminal Law is premised on a presumption of innocence which is supposes that a cooperative suspect or accused person shall not be deprived of any of his/her rights or liberties beyond those which are strictly necessary to ensure an effective trial. This principle is embedded in the Rome Statute of the ICC under Article 66 (1).

There is precedent for a person accused of crimes against humanity before an international court being allowed to continue with political activity, as long as they are also cooperating with the Court process. Ramush Haradinaj, a former leader of the Kosovo Liberation Army (KLA) was among former KLA officers charged of war crimes during the 1999 Kosovo War by the International Criminal Tribunal for the Former Yugoslavia (ICTY) at The Hague.

Haradinaj was appointed Prime Minister of Kosovo in 2004 but only served only 100 days as Prime Minister before being indicted for war crimes by the International Criminal Tribunal for the Former Yugoslavia (ICTY), at The Hague. The indictment alleged that Haradinaj, as a commander within the KLA, committed crimes against humanity and violations of the laws or customs of war between March and September 1998, the alleged purpose of which was to exert control over territory, targeting Serb, Albanian and Romani civilians.

Haradinaj indicated in a statement at the time that he was willing to submit himself to the court and be scrutinized for his actions during or after the war, confident all actions were both legal and justified.
Haradinaj's trial at The Hague began on 5 March 2007. When the ICTY indictment was issued in March 2005, Haradinaj voluntarily travelled to The Hague where he remained for two months until he was granted provisional release pending trial. Haradinaj received much praise for his actions and words at that time, which were perceived by many, including the International Crisis Group (ICG), US Senator Joe Biden and the late British Foreign Secretary Robin Cook as having prevented violence and civil unrest by cooperating voluntarily.

The then United States Senator Joe Biden (currently Vice-President) commented on Haradinaj's indictment,
"In the overall post-Yugoslav context, Mr. Haradinaj's willingness after his indictment to surrender voluntarily and go to The Hague is striking. It stands in glaring contrast to the behavior of the three most infamous individuals indicted by The Hague, all of whom are still fugitives, resisting arrest: former Bosnian Serb General Ratko Mladić, former Bosnian Serb leader Radovan Karadžić, and former Croatian General Ante Gotovina."

The ICTY gave Haradinaj permission to continue with political activities including elections due to his voluntary cooperation with the Court.

A look at our national laws on vying for public office:

1. Qualifications and disqualification of a presidential candidate

1.1 Qualification: as per the Kenyan constitution article 137 (1), thereof one is qualified for nomination “as a Presidential candidate if he/she is qualified to stand for election as a Member of Parliament and is properly nominated.”

1.2 Disqualification: Section 99 (2) of the constitution disqualifies one from being Member of Parliament-and President if the person: is subject to a sentence of imprisonment of at least six months, at the date of registration as a candidate or the date of election. However, Section 99 (3) says that "A person is not disqualified under clause (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted.” Hon. Ruto/Uhuru cannot be disqualified under this article since they have not been sentenced.

2. Innocent till proved guilty: the Kenyan constitution, the Kenya criminal laws, the Rome Statute and the rules of natural justice all provide for the right of a suspected and accused person to be presumed innocent till proven guilty. The confirmation of charges is not a conviction but a decision that there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged. In this regard even if the charges are confirmed the suspect would still be qualified to vie. The only limitation is if there is a conviction of guilt which can only come after a full trial process.

3. Right to vie and hold office: the constitution at Article 38(3) guarantees “every adult citizen the right without unreasonable restrictions, to be a candidate for public office and if elected to hold office. In this regard an accused person should enjoy this right in full unless he is convicted and exhausted all the avenues of appeal.

Chapter Six of the Constitution should not be read in isolation. It should not be elevated above the presumption of innocence contained in the Bill of Rights. It should not be construed as somehow being superior to the express provisions of the Constitution regarding particular issues. If this were the case then the Constitution would have expressly included Chapter Six as part of the qualifications for eligibility to seek or hold the office of President. It does not; instead it provides exact criteria and procedures that are the only law in that regard. To this end it is important to examine the chapter closely in terms of both its substantive content and also the rationale behind its inclusion in the Constitution of Kenya.

In light of the rules of natural justice the accused should be allowed vie. The final decision should be made by the electorates. This is in tandem with article 38 of the constitution which gives “every citizen” as a right to make political choices.