, NAIROBI, Kenya, Sep 9 – With only a day before Kenya’s Deputy President William Ruto and former radio presenter Joshua arap Sang take the stand at the International Criminal Court (ICC) concerns and questions have been raised on Ruto’s cooperation with the court and his official duties.
Even though Ruto has fully cooperated with the court and has pledged to continue doing so, there are concerns that he may not be in a position to cooperate because of his State duties.
However, local NGO International Center for Policy and Conflict (ICPC) says that Ruto and President Uhuru Kenyatta should not tie the country to their personal cases.
“The cases facing the trio at ICC are on personal criminal responsibility and not State or institutional responsibility. They should not drag the country into the cases, as both the Constitution of Kenya and Rome Statute are categorical on prosecution of nature of crimes they are facing,” Ndung’u Wainaina, the organisation’s Executive Director, said.
He explained that ICC is not after the country but three individuals who are required to answer to charges of crimes against humanity following the 2008 post election violence.
According to Wainaina President Uhuru Kenyatta and Ruto should also not use state resources in their cases.
“ICPC cautions the Office of Attorney General against abuse and or expenditure of public resources for personal criminal responsibility matters. The cases do not fall under the legitimate public purpose. The office should make full disclosure to the Public Accounts Committee of Senate and National Assembly of any public resources being spent on the ICC cases,” he said. The ICC itself has maintained that Kenyatta, Ruto and Sang are facing charges at the ICC in their individual capacity.
ICC has also maintained that it will treat Ruto, Kenyatta and Sang equally and will not give them any special treatment based on their state positions.
ICC Spokesman Fadi el Abdallah in a video interview last week said; “Ruto, Sang and Kenyatta are not prosecuted by ICC in their official capacities or due to their political positions. The proceedings are related to the alleged individual and personal criminal responsibility regarding the post election violence in 2007/2008.”
Political columnist Ngunjiri Wambugu in an interview with Capital FM News however contradicted Wainaina and the ICC for the views which he termed as ignorant.
He said ICC should recognise Kenyatta and Ruto are the top leaders of the country and whatever they have at the court affects the entire nation.
Wambugu said it may be impossible for President Uhuru Kenyatta and his Deputy William Ruto to be present during the full trial as required by the Rome Statute.
Kenyatta and Ruto have always maintained that they will cooperate with the court and recently Ruto asked for interludes of two weeks when his trial starts so that he can get time do his work but at the same time cooperate with the court.
Ruto and Sang are set to begin their trial on 10th September and Kenyatta on November 12.
According to the Rome Statute which has also been the argument put forth in the appeal by ICC Prosecutor Fatou Bensouda, all accused persons are required to be present in person during their trial.
However Wambugu said it would be difficult for Kenyatta and Ruto to be present during all sessions based on the responsibilities bestowed on them as President and Deputy President of Kenya.
The Trial Chamber had granted Ruto’s application to be excused from continuous presence during his trial but the prosecution has now challenged the decision to have Ruto to attend all sessions in person. The decision will be delivered later but for the time being Ruto has to continuously attend all sessions of his trial.
The columnist believed the prosecutor and the court should not be blind to the fact that Ruto is not just as an individual but a person who is at the core of running Kenyan affairs.
He explained that the Rome Statute also did not envisage a scenario where presidents and their deputies would be inductees of the court.
In his view, the ICC has to think further about the security of the president and his deputy since they are not just individuals but top leaders who are accorded State protection.
“A sitting head has never been in the premises of the court, what happens when a president is in a foreign country, will they secure the court when he is in that building? What happens when he goes to court? We have a problem, the world never envisioned, if anything happens to Kenyatta at The Hague, ICC will be held responsible, Netherlands will be held responsible,” he asserted.
The prosecution has especially argued that they will be treated the same way former radio presenter Joshua arap Sang and other accused persons have been treated by the court.
Wambugu explained that is where the court was going wrong because the Constitution of Kenya does not have a provision that Kenyatta and Ruto will cease to be President and Deputy President at a certain point of their leadership.
“At what point does he stop being the president or deputy president of Kenya? Do they expect any president to come to the court and not leave? Does Kenyatta or Ruto stop being president or deputy president when they are at the ICC whether it is for an hour, a week or a month? When they are there, what is happening to the rest of the country? There will be government lapse, what if something happens, are they treated as inductees of the court or president and deputy president by the court?” he queried.
The columnist further wondered how their security detail will be handled during their time at The Hague based court.
“How will they deal with a sitting president at the Hague? Where do these immunities stop, does he have them inside or outside the court, at what point does security stop guarding him as president or deputy president, these are dynamics we have to think about. The president travels with fully fledged security team,” he explained. “It is the responsibility of the host country to take care of their security. How will they do, this case is complicated.”
Wambugu raised eyebrows on what he termed as a conflict between the Rome Statute and the Kenyan constitution, where the latter accords the president immunity while the former does not.