Archive for October, 2013

A president’s hardest task is not to do what is right but to know what is right

“No man who ever held the office of president would congratulate a friend on obtaining it.” 
― John Adams

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Uhuru might not cooperate with the ICC after all, cooperate here might not mean what we think it means, so before we get our underwear in a bunch we need to ask what is really being demanded. I believe Uhuru has yet to say he intends to completely disregard the court proceedings and thus invite a warrant of arrest from the ICC in the mould of the butcher of Darfur; what I think has been requested is that his actual presence at trials be dispensed with given his busy schedule and status, something that is not unreasonable if you ask me.

I’ve been wondering what it would take away from Bensouda to allow Uhuru to use a video link instead of having him sitting there on his hands, wild eyed and pensive in the dock just listening to testimony after testimony when he’s not required to contribute a thing, perhaps for weeks, and as a result demeaning our office of the presidency (the office, not the man; but the man just happens to be in that office regardless of how or by what margin).

I know he was not president when this cases begun, I know he said it was a personal matter, but I also know that we knew (at least those of us with a modicum of sense) that if he became president then things would somewhat change, in fact those who had their eyes open knew that that very leverage a president has in getting some reprieve from the indignities of trial is what drove team UhuRuto to burn the candle at both ends to deliver ‘victory’ to Jubilee.

I am aware that as usual the ordinary mwananichi cannot see beyond tribe and party affiliation, and so the cabal around Uhuru would have us believe that Raila controls the ICC and is to blame for all of this, that’s bullshit, UK and Ruto asked to take the ICC option themselves, I am also aware that supporters of CORD, who number almost half those who voted, might not be ready to accept UK as ‘their’ president and would love to see him squirm in the dock at the ICC, that’s like cutting off our noses to spite our faces, the guy happens to be our Commander in Chief and as such his humiliation is our humiliation as a country and a proud country at that.

Madam Bensouda, I’d suggest that if Uhuru is willing to continue with this trial and that all he asks is not to have to appear in person for every single sitting unless his testimony is required of course, can you please be a little accommodating. What will it take away from the court to use a video link? It will certainly take away less than it will from us as a sovereign country having to watch the public humiliation of their head of state for months on end.

A friend of mine, a lawyer by profession, adds:

“On the whole ICC saga and UK’s appearance at The Hague, he may have some merit in asking the court to be more accommodating. There have been no cases where a sitting president has been tried by an international court, however there are a few cases in a number of jurisdictions where the law grants presidents special protection (South Africa) Nelson Mandela had appointed a Comm. Of Inquiry in a manner that contravened the law, he was called before the High Court to testify. His lawyers tried to prevent him from testifying given his status as President, however he came and testified nevertheless. On appeal before the Constitutional Court, the highest court in the land, the CC stated that where a President is called as a witness, special arrangements are often provided for in the way evidence is given. It adds ‘Courts are supposed to ensure that the status, dignity and efficiency of the OP is protected…at the same time however, the administration of justice cannot be impeded by the court’s desire to ensure that the dignity of the President is safeguarded.’ So we see to aspects of the public interest – respecting the office on the one hand, and not impeding justice on the other. The two must be balanced. The court added this gem ‘Except in exceptional circumstances requiring the President to give evidence, the special dignity and status of the President together with his busy schedule and the importance of his work must be taken into account.’ (USA) In 1991 then Governor Bill Clinton propositioned one Ms. Jones, four years later she sued President Clinton for sexual harassment. Merits aside, the Supreme Court, on appeal, stated the following: ‘The testimony of the President may be taken at the White House to accommodate his busy schedule, and that if a trial is held, there would be no necessity for the President to attend, though he could elect to do so.’ The court added that while the President can be tried, ‘High respect is owed to his office…’ When a president testifies, respect for the office, the need to reserve his dignity, and an understanding of the implications of his busy schedule must be carefully considered. (Germany) The German Civil Procedure Codes explicitly state that a President need not attend court in person and may give testimony at home. He may also refuse to give evidence were it to be detrimental to the Federal Republic of Germany or a German State. Those three jurisdictions are what I can find and recall from administrative law. They can be distinguished in some ways. One, this isn’t the ordinary judicial body of a state, it’s an international court. Two, the nature of the crimes may be the ‘exceptional case’ the South African court spoke of and thus are more grievous offences as compared to Mandela’s wrong COI appointment or Clinton’s pre-Lewinsky philandering. My personal opinion is that the ICC has failed to be more accommodating, it is still bound by principles of International Law – of which include the principles created by the courts of states such as South Africa, the USA and Germany. The court has failed to accord even an inkling of respect, dignity and accommodation to Kenyatta – they could have reached a balance of the two aforementioned interests by even sitting in Arusha. UK must be tried for these offences, that I fully advocate for, however, I’m of the view that the Trial Chamber and the OTP should reconsider their stance on how Kenyatta will testify.  “

“In my country, we go to prison first and then become President.”
— Nelson Mandela

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