“The constitution does not forbid a person from running for office who is faced with criminal charges,” says Ms. Ero.
But the constitution does say that a president who faces criminal charges is vulnerable to impeachment, and in that spirit, Ruto and Kenyatta could possibly be tossed out of office with a two-thirds vote of parliament.
“The question is more a political and moral one than it is a legal one,” she adds. “How will Kenyans react to this decision? How will they feel about a candidate, knowing that he faces such charges? Is this the sort of person they want to have in office?”
In a report issued today, Human Rights Watch warns that politicians in Africa continue resisting cooperation with the ICC, even those countries such as Kenya which have incorporated ICC provisions into their own constitutions. The ICC was created as a court of last resort, when national courts are unable or unwilling to take up human rights cases. The Kenyan parliament failed on two occasions to create a local tribunal to handle the post-election violence cases, which then prompted the ICC to take them up instead.
“This past year demonstrated the desire of so many Africans to choose their own leaders peacefully and fairly,” said Daniel Bekele, Africa director at Human Rights Watch in a statement. “Sadly, the votes were often marred by government intimidation, army and police abuses, and conflict incited by politicians. Unless these grave problems are remedied, Africans are likely to see more of the same in future elections.”
Now the ICC chamber must set up a tribunal, or perhaps two, to handle the Kenyan cases, a process that could take weeks or months. It is uncertain whether a verdict of innocence or guilt will be attained before Kenyan elections, planned for March 2013.