My dearly beloved King:
Salutations: I hope you are in rude health. I am constrained to write to you once more as your loyal and obedient servant. You see, I am one who believes that the truth, however contentious and bitter, will set us all free. But first let me begin with a small story.
This is Hans Christian Anderson’s The Emperor's New Clothes. It goes something like this: An Emperor hires two tailors, who are really swindlers, to fit him the finest clothes. They promise him the finest, best suit of clothes from a fabric invisible to anyone who is unfit for his position or "just hopelessly stupid". The Emperor cannot see the cloth himself, but pretends that he can for fear of appearing unfit for his position; his ministers do the same. When the swindlers report that the suit is finished, they mime dressing him and the Emperor then marches in procession before his subjects, who play along with the pretense. Suddenly, a child in the crowd, too young to understand the desirability of keeping up the pretense, blurts out that the Emperor is wearing nothing at all and the cry is taken up by others. The Emperor cringes, suspecting the assertion is true, but proudly holds his head up high and continues the procession.
The reason I relate this story to you, if it is not immediately obvious, is because I am afraid you have been laid brutally bare, actually totally naked, by the ICC ruling that was delivered on January 23 this year. Yet, what you are receiving and seemingly banking on is “comfort advice” from your confidants. You are also enjoying a “sympathy vote” swing from the cheering masses within the ethnic gatherings that have recently been organized to support your presidential bid in the forthcoming elections.
You are being told that there is no reason why you cannot vie for the presidency: and the reasons being trotted out to support this jaundiced view is that there is nothing in the new constitution that bars you from running for the highest office in the land. After all, this argument goes, where in, for instance, Articles 99 and 137 of the constitution - which spell out the various relevant qualifications and disqualifications that would affect your bid – are there any provisions prohibiting your candidature?
Well, under Article 99 (1) (b), you are required to satisfy any moral and ethical requirements prescribed by the constitution. Which are these? Under Article 10 of the constitution (National values and principles of governance), these moral and ethical requirements include the rule of law, good governance, integrity, transparency and accountability. The presumption of innocence, obviously, means that you are innocent until proved guilty. But how much accountability with regards to post-election violence can we expect from you in the event that you win the next elections while you are still facing charges before the International Criminal Court? Does the confirmation of charges by the International Criminal Court against you, notwithstanding your innocence, not ask grave questions about your integrity?
In 2004, the United Nations Secretary General defined the rule of law as “a principle of governance… [that] requires…measures to ensure adherence to… equality before the law, accountability to the law, fairness in the application of the law…” Is it not clear to you that your presidency at this point would jeopardize the rule of law in Kenya because, given the power dynamics that would subsist, the victims and survivors related to the case against you could not realistically expect equality before the law, accountability to the law and fairness in the application of the law? In fact, as President, Article 131 (2) (e) would require you to protect the rule of law and this only reinforces the fact that there is an implicit fatality in your candidature for the presidency at this point when the charges at the International Criminal Court still hang over you.
There are those who argue that the provisions of Chapter 6 of the Constitution are inapplicable because the enabling legislation envisioned under Article 80 has not been enacted. However, read Article 80 once more: you will find that, for instance, sub-article (b) states that this legislation is meant to be “prescribing the penalties, in addition to the penalties referred to in Article 75…” while sub-article (d) talks about this legislation “making other provision necessary…” This language - by talking about already existing penalties and alluding to “other provision” - is a patent indication that Chapter 6 of the constitution is already operational.
Hence, what is implicit under Article 75 is that one who is the president cannot be hampered by: “(a) any conflict between personal interests and public or official duties; (b) compromising any public or official interest in favor of a personal interest; or (c) demeaning the office the officer holds.” However, in the event that the people of Kenya elect you to the office of President while you are at that point in time still facing charges at the International Criminal Court, there will be tension and obvious conflict: on the one hand you will be seized of the unavoidable personal interest to ensure that you are discharged at all costs by the International Criminal Court while on the other hand there will exist an overriding public interest that the victims of post-election violence find justice. In addition, are the charges facing you at the International Criminal Court not demeaning of the office of President of Kenya as provided by Article 75 (1) (c)?
All the issues that I am raising with you are not mere legal inconveniences. They are the reason why there was such hunger and desire by Kenyans to enter into a new political dispensation; which was the reason the new constitution was so hugely popular in the August 2010 referendum. If you are true to your words that you represent a new generation of leaders that will provide us with a clean break from the past, please choose a new path that honors the new code by which Kenya is now governed. If you belong to a new generation that is merely here to reproduce the same old bad habits of our tumultuous and traumatic past, then continue on the path you are currently on but know that you are on the wrong side of history. And your nakedness will continue to be forever on public display.
Mugambi Kiai is the Kenya Program Manager at the Open Society Initiative for Eastern Africa (OSIEA). The views expressed in this article are entirely his own and do not reflect the views of OSIEA