Uhuru to attend ICC conference

In his address to the Nation via parliament, Uhuru has put to rest all conspiracy on whether he will honor ICC summons or not.

As always, we will look into this matter in full depth

First off, it was not a matter of choice. Uhuru did not have multiple choice options as far as the summons were issued. It was either he honors and gets it over with, or does not and immediately face its negative consequences.

But in this case, that is the only bad news

The good news (and there is a lot of good)

1. Although not necessary, since it is clearly spelt out in the constitution, Uhuru has indeed done a highly commendable step by putting the country first, following the constitutional process, and formally handing over to his deputy (also see other notes below).

2. Although after handing over he left Harambee house in individual capacity in a private vehicle, this IMHO is slightly below what he deserves since the constitution accords all living ex-presidents some amount of state resources/security etc, and he therefore should continue to use these up to and until or unless he gets indicted or incarcerated (in which case he loses all such priviledges)

3. By temporarily stepping down, he has demonstrated and exercised tremendous courage and goodwill for the nation i.e we will not witness security hitches at the Hague as his state bodyguards fumble at the courtrooms etc. This is a first in Africa, where a sitting president has voluntarily stepped down. (see 6 below)

4. However, it will be worth noting exactly how the Kenyan diplomatic service will handle this, considering that his Deputy WS Ruto has been doing the exact opposite and gone overboard with outriders etc at taxpayers expense while at the Hague, i.e accorded and abused state resources as a guest of the state rather than as a guest of the ICC. In this regard, Uhuru shines through as a statesman who has put country first and attend in his private capacity.

5. Political coup – Uhuru has in deed and action, sent two messages a) to Ruto’s backyard, he has shown that he keeps his word and will stand by Ruto for president b) to his own backyard – he has put it into perspective that he will support Ruto if and when the time comes. i.e on an individual level, he has kept his promise or intends to

6. Worst case scenario  – The govt has not done Uhuru any favors and by continually stonewalling the ICCs OTP, they have painted a picture of lack of cooperation, and since Uhuru is the head of state, it is naturally assumed that he is behind govts lack of cooperation. In this regard, stepping down is a very clever ruse, and am sure it was concocted by some very sly operators to hoodwink the ICC, but however, lets see if the court is fooled.

7. Detention – In the worst case scenario, OTP can apply for detention of Uhuru, citing massive witness tampering, intimidation, govt interference etc. In fact this threat is so real and whether proved or not, and especially now that he has stepped down (i.e will not cause any more ripples – Note that AU is no longer protecting a sitting president  ), it is very likely that he may be detained until a later date.

In the event of being detained, Chapter 6 automatically comes into force and the most logical thing to do after that would be to resign honorably

That however, is a tall order

8. In the event of his being detained, and lets suppose Ruto is acquitted, lets put two and two and get seventeen.

9. But what if however, that Uhuru gets detained, and in a few days, Ruto’s case is determined that Ruto is indicted? What then?

10. Of course most people (jubilettes) are praying fervently right now that both Uhuru and Ruto are acquitted this week. After that, all manner of hell will be visited on any opposition to Jubilee.

The events at the ICC for this week, will certainly be worth following

Over to you folks, what do you think?

________________

Addendum to article

After a brief discussion on twitter

It occurs to me that the law is clear on temporary vacancy of president Articles 146, 147, 134 and 74 among others

But it is silent on how and when resumption of duties takes place.

I.e lets suppose Vacancy is due to lets say mental illness, what would stop a deranged person from declaring that s/he is now recovered and will resume office?

Or in this case, does Uhuru automatically resume office when the plane touches down in Nairobi?

Could hehehe a mischievous Ruto instruct the state house comptroller to bar Uhuru from State house and Harambee house?

There must be some process that should indeed (independently) certify or declare that the individual is to resume office. Otherwise it is clear that the Ag office has to be sworn into office, and when the time comes, just like Uhuru called parliament to announce his stepping down, then Ruto must call parliament to hand back power

Lets face it, the law did not anticipate Kenyans would be crazy enough to elect two people with such issues as President and Deputy in the same cases running at the same time.

Notably

146 (c)  otherwise ceases to hold office under Article 144 or 145 or
under any other provision of this Constitution.

followed by

146 (2) When a vacancy occurs in the office of President—

(a) the Deputy President shall assume office as President for the remainder of the term of the President; or

and then we have

146 (3) A person who assumes the office of President under clause (2) (a), or following an election required by clause (2) (b), shall, unless  otherwise removed from office under this Constitution, hold office until a newly elected President is sworn in following the next regularly scheduled election under Article 136 (2) (a).

But of course we are talking here of

147 (3) Subject to Article 134, when the President is absent or is temporarily incapacitated, and during any other period that the President decides, the Deputy President shall act as the President

But as the SCOK told us before, you have to read the constitution together with other parts for it to work

Advertisements

3 comments on “Uhuru to attend ICC conference

  1. Well well well. Just have a look at the appointments by Uhuru of Uhuru guys in strategic positions especially is security. My submission is that Ruto dare not move a fin.

    • Here is how Sadik on Jukwaa phrases this in legal speak

      http://jukwaa.proboards.com/post/131465

      ____________________

      For our sake, Section 147 (3) is the main provision.

      When the President is absent or is temporarily incapacitated, it reads. I argue that both provision apply here. The President is absent and is temporarily incapacitated because he was forced to attend ICC – the circumstance that led to his absence, thus as provided in the Constitution, the Deputy President shall act as the President.

      If you think “Incapacitate” only apply to poor health, you are mistaken. In law the definition is to deprive someone of his or her legal capacity.

      People deprive themselves of legal capacity when they are not able for whatever reason to function.

      Now that Uhuru has voluntarily deprived himself of his capacity to be the President, as he admitted in his speech that he couldn’t function as the President, when attending to the ICC, he is incapacitated from being the President, and because he is incapacitated, he cannot be expected to decide his fate while he is incapable due to incapacity ( lack of capacity).

      In my view, it all depends on Ruto’s goodwill. If he cling on to the Presidency, Uhuru will have no leg to stand on as he cannot ask to be returned that which he gave up voluntarily.

      Think about it, what if Ruto refuses to hand back the Presidency to Uhuru on his return?

      ___________

      The key here is that Uhuru has already “handed over to Ruto” and therefore has no power to determine being “handed back” and instead depends on the goodwill of Ruto to be “handed back”

      Its of course all a lot of speculation, but it just depends on how hungry some folks in Ruto’s corner are for power.

      All it needs (the trigger) is for a little hiccup/hitch between the ICC-Hague trip and beyond the 48 hours, and the notice changes its import.

      The second and more serious point here which puts the spotlight back to SCOK and IEBC for erring on application of chapter 6 on integrity. This is precisely, and the text book case, on why it was stated here and on other forums, by so many contributors that, these two guys should not be on the ballot box, for precisely the reasons that Uhuru gave in his address to parliament.

      Here are some excerpts from Chapter 6

      73 1 (a) (iii) brings honour to the nation and dignity to the office;
      (iv) promotes public confidence in the integrity of the office

      (ii) the declaration of any personal interest that may conflict with public duties;

      73 2 (c) (ii) the declaration of any personal interest that may conflict with public duties;
      _________

      And here is the excerpt from Uhuru’s memo which implies that his trial at ICC makes it impossible for him as an individual to be suitable to be president

      It is for this reason that I choose not to put the sovereignty of more than forty million Kenyans on trial, since their democratic will should never be subject to another jurisdiction

      Therefore, let it not be said that I am attending the Status Conference as the President of the Republic of Kenya

      In as much as this is admirable, it is an admission that he does not meet the requirements for chapter 6.

      _______
      Anyway besides this melodrama and on a happy note, I would hope for speedy dispensation of these two cases so that Kenyans can move on. Justice appears further and further away with the passage of time, loss of witnesses, loss of memory, re-writing of this tragic history with victims becoming villain, and villains the victims, witnesses turned hostile, etc. The quest for justice on this chapter will be carried out as a historical footnote but not as justice for victims and survivors.

      Can ICC re-invent itself and recover from the negative press? Its possible, but it will be a long drawn out affair, if ever.

What Say You Now?

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s