By Njaramba Gichuki
The International Criminal Court (ICC) ruckus is back. And with it the one million shilling question. Are Uhuru Kenyatta and William Ruto barred from seeking the presidency on the basis of their ICC cases? It is therefore necessary to have a legal exposition on the subject so that we can put this issue behind us.
For starters, Uhuru and Ruto are Kenyans. Like every other Kenyan, they are subject to the Constitution.
In every part of the world today, it is widely accepted that the right to a fair hearing is a key tenet of justice. All international human rights treaties and conventions recognise this. Indeed, Article 25 of the Constitution provides the right to a fair trial and the same cannot be limited under whatever circumstances. Article 50 (2) goes further to substantiate that the right to a fair trial includes the right to be presumed innocent until proven guilty.
It goes without saying, therefore, that Uhuru and Ruto are innocent until proven guilty. For that reason it would amount to hypocrisy for some people to contemplate a situation where competitors will be kept out of an election even though the Constitution clearly safeguards their rights.
Article 1 of the Constitution states that all sovereign power belongs to the people of Kenya and they may exercise this power either directly or through their democratically elected representatives. Attempts to deny any Kenyan an opportunity to offer himself for election is an affront to their sovereignty.
The Constitution guarantees political rights. Article 38 gives every citizen freedom to make political choices, the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors.
Article 137 of the Constitution enumerates the qualification and disqualification for election as president. A person is qualified for nomination as a presidential candidate if he is a citizen by birth, is qualified to stand for election as a Member of Parliament, is nominated by a political party or is an independent candidate and is nominated by at least 2,000 voters from majority of the counties. A reading of this provision of the Constitution, whether loosely or strictly, will tell you that Uhuru and Ruto are qualified to be presidential candidates in the forthcoming General Election.
It has been alleged from various quarters that the ICC is a Western court established to control Africa. This may or may not be so. It is not for me to pass judgement. However, one thing is clear. Article 4(1) of the Constitution states that Kenya is a sovereign republic and voters have a say on who becomes president.
Of course some will argue that international law forms part of the laws of Kenya. Whereas that may be correct, international law does not come to supplant the Constitution. It is subservient to the Constitution. Indeed in the Preamble to the Constitution, Kenyans are categorical that they made the Constitution “exercising our sovereign and inalienable right to determine the form of governance of our country”. It is therefore a shame that in independent Kenya, Kenyans are not sure whether certain candidates will be on the ballot paper and all this dependent on a decision that is supposed to be made in a foreign land by foreigners.
In a bid to justify that Uhuru and Ruto should not seek the presidency, some have argued that their cases before the ICC would offend national values and leadership standards set by the Constitution. A thorough reading of the Constitution will tell a different story. Article 10 provides for the national values and principles of governance, which include the rule of law, democracy and participation of the people. Therefore nothing in the Constitution prevents Uhuru and Ruto from seeking the highest office in the land.
Writer is a Law lecturer at University of Nairobi and an Advocate of the High Court
