Kenyatta faces ICC proceedings in individual, not official, capacity

Yet for four months last year, Kenyatta’s lawyers used to file their written submissions to Trial Chamber V(b) as “Defence of President Uhuru Muigai Kenyatta.” Steven Kay and Gillian Higgins did not start submit their filings in this manner until about four months after Kenyatta was sworn in as president in April 2013.

Kay and Higgins began sending their submissions in this manner in August last year (for example this application asking the chamber to order the prosecution to file a corrected trial brief). Two months later, the three judges of Trial Chamber V(b) directed them to stop doing so.

“These proceedings are against Mr Kenyatta in his personal capacity and not in his capacity as President. In the circumstances, the Chamber does not consider the use of this title appropriate in filings in this case. The Chamber therefore directs the Kenyatta Defence to refrain from including Mr Kenyatta’s official title in its filings,” the judges said inan October 18, 2013 decision on an application for Kenyatta to be excused from his trial proceedings.

In that decision, two of the judges agreed to allow Kenyatta to be absent from sections of his trial proceedings. In her partially dissenting opinion, Presiding Judge Kuniko Ozaki supported her fellow judges in directing Kenyatta’s lawyers to stop using his official title in their submissions to the court.

However, this did not immediately stop Kenyatta’s lawyers from using his official title in their filings. They only reverted to “Defence for Uhuru Muigai Kenyatta” in mid-November of last year (after this submission responding to a prosecution application for protective measures for the first 10 witnesses it planned to call).

It is the accepted wisdom that if Kenyatta is out of the country then Ruto automatically becomes acting president. Ruto himself has been on trial at the ICC since September 2013, along with former journalist Joshua arap Sang, on charges of crimes against humanity, and Trial Chamber V(a), which is hearing Ruto and Sang’s case, has on at least three occasions had to consider the question of whether Ruto and Kenyatta can be out of the country at the same time. This is after Ruto’s lawyers applied to the chamber to allow him to be absent from some of the hearings so that Ruto can be in Kenya while Kenyatta attends official meetings outside country. On each occasion Ruto’s lawyers have argued that the Kenyan constitution does not allow both the president and deputy president to be away from the country at the same time.

Ruto’s lead lawyer, Karim Khan, made this point in an application when asking Trial Chamber V(a) to allow Ruto to be absent from hearings on January 16 and January 17 because on January 16, Kenyatta would still be at a regional meeting in Angola where the conflicts in South Sudan and Central African Republic were going to be discussed.

“During this period, Mr. Ruto, as Deputy President, will be required to ‘deputise for the President in the execution of the President’s functions’ as well as perform his own constitutional duties,” Khan said in his January 14, 2014 application, making reference to the Kenyan constitution. In a footnote to the application, Khan also wrote, “As the Trial Chamber is aware, the President and Deputy President are not permitted to be out of the country at the same time.”

The chamber allowed Ruto to be absent from hearings on November 1, 19, and 20 last year and January 16-17 this year. On November 1 last year, Kenyatta was in South Africa to attend a joint meeting of leaders of the International Conference on the Great Lakes Region and the Southern Africa Development Community. Between November 19 and 20, Kenyatta was in Kuwait for a meeting of leaders of the African Union and the Arab League. Between January 16 and 17, Kenyatta attended another meeting of leaders of the International Conference on the Great Lakes Region. On each occasion Kenyatta left the country to attend to regional issues that are of interest to Kenya, and there was no handover ceremony. Ruto simply remained in the country and acted as president.

While Kenyatta’s speech to a joint sitting of the National Assembly and the Senate on October 6 may have seemed directed at the ICC, it was actually meant for his domestic audience. There was concern in his support base that Kenyatta going to The Hague would undermine the authority of the office he occupies. Kenyatta addressed those concerns in his speech by giving the assurance that he was not going to The Hague as head of state and following up that statement with the handover ceremony.

His words and actions on October 6 seemed to have been well received judging by the latest Ipsos opinion poll on his rating as president. Released on October 15, the number of respondents who expressed a lot of confidence in Kenyatta’s performance shot to 71 percent, up from 43 percent a month earlier.

When broken down to respondents’ coalition affiliations, 90 percent of those who support Kenyatta’s Jubilee Coalition said they had a lot of confidence in his performance. This was up from a month earlier, when 68 percent held the same view. Of those who support the opposition Coalition for Reform and Democracy (Cord), 44 percent said they had a lot of confidence in Kenyatta’s performance as president. This was up from only 13 percent who held the same view a month earlier.

In the poll released on October 15, respondents were also asked for their views of the government’s cooperation with the ICC. When asked whether the government had fully cooperated with the ICC, 53 percent of the respondents said they feel it had. However, when asked whether the government should increase its cooperation with the ICC, 67 percent of the respondents said it should.

Also in the poll, 58 percent of respondents said Ruto should continue attending his trial even if the case against Kenyatta is terminated. Another question respondents were asked was whether Kenya should remain a member of the ICC at the conclusion of the Kenya cases and irrespective of any one being convicted or acquitted. Fifty-seven percent of respondents said Kenya should remain a member of the ICC.

The latest Ipsos poll was conducted between October 11 and October 13, just days after the two status conferences in the Kenyatta case. The interviews were conducted over the phone with 1,669 people responding to the calls out of a total of 4,020 people who were contacted. The poll’s margin of error is plus or minus 2.4 percent. The poll was self-financed by Ipsos Limited.

The full Ipsos October 15 poll can be downloaded here.

This is article was produced by and originally appeared on the International Justice Monitor, a project of the Open Society Justice Initiative.