A lot of ink has been spilt on the provisions of the new Constitution, especially Chapter Six and its Integrity standards, and whether this bars the ICC suspects from standing as Presidential candidates in the elections next year.
I won’t comment on the Chapter Six issue because the matter is pending in court (eish, and the judges are taking their time!). But an interesting dimension is the practicality of (a) running for President while on trial and (b) if elected, running the government while on trial- especially if the presence of the defendant is required for a prolonged period at the Hague. One defendant, William Ruto has already suggested that he could use ICT to run his campaign/the country while in the Netherlands. It’s an innovative approach to delegated leadership, we wait to see if the courts in Kenya and the Netherlands will give him the opportunity to try it out. Of course, one could ask what would happen to Ruto’s wireless government if, as sometimes happens, someone/something cuts the faiba link.
One defendant, Jean Pierre Bemba has already blazed the path in seeking to be a Presidential Candidate while on trial. Bemba is a Congolese citizen on trial for allegedly committing crimes against humanity and war crimes in the neighbouring Central African Republic. However, unlike the Kenyan defendants, he is in custody in the Netherlands. Therefore, he needed to seek provisional release (in mid-2011) to go to the DRC and register as a voter and as a presidential candidate. DRC law requires candidates to present their papers in person. The past practice in Kenya was that candidates also presented their papers in person; it’s unclear whether this will continue in the 2013 election. The Elections Act only require that the person be nominated under his/her party rules and that the party certify the nomination to the Independent Electoral and Boundaries Commission. The candidate also needs to give IEBC a specimen signature. So theoretically, this dispenses with personal appearance at the IEBC to present nomination papers as long as IEBC has a specimen signature. But as anyone who has dealt with Kenyan bureaucracy knows, theory and practice can be different planets orbiting in opposite directions.
Back to Bemba: unfortunately for him, the court refused to release him. Though he appealed, he subsequently missed the deadlines for registration for the DRC elections. The test that the court employed in denying him provisional release was a balancing test between his interest in civic participation in the election and the risk of his absconding while out of custody. Food for thought for the Kenyan defendants who are floating free right now?