Pundit / MoonKi Swali La Kikatiba

[Omollo]

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1. Assuming Uhuru lands in The Hague and is immediately confronted with an arrest warrant issued under seal by the ICC to the Dutch Authorities who hand him over to the ICC in to those luxury cells;

2. I know that the OTP would then move to have his bail in the other case terminated so there is no contradiction while he is facing the Pre-Trial Chamber for Obstruction of Justice, Witness Tampering (bribery, intimidation and murder)

Question:

a. At what point does he cease to be President of Kenya
b. Any other relevant point

[RV Pundit]

Well that won't happen but in case; Uhuru would certainly challenge the warrant and will want to be released; the constitution talks about being jailed for more than six month; does remand time count? I doubt.

I think Ruto will act for quite a long time as Uhuru battle the court;

Normally those held in ICC remand are allowed every couple of months to have their bail term reviewed.

[bryan275]

I think it would've been harder to arrest and harass a president.  Uhuru has just made it easier to arrest and detain considering there'll be no political vacuum ....

[MOON Ki]

Omollo:

I don't see that happening.  But, purely as an "academic" exercise:

* It might be considered that a president who is locked up in a far-away land is "physically incapable" of carrying out his duties.   In that case the National Assembly would initiate a process to kick him out, under Article 144.   I do, however, believe that the relevant clause is intended to cover "physical illness", not being nabbed for crimes, but I imagine it could be stretched.

* An ICC arrest warrant would be issued for, say, obstruction of justice.    In this case the National Assembly could seek to kick him out because there would be "serious reasons for believing that the President has committed a crime under national or international law".   (Article 145)

[Omollo]

I don't see why the caveat that it is unlikely. It is possible and it is likely. Bensouda has openly accused Muthaura of killing witnesses. She has made similar insinuations against Uhuru. It is not impossible to get evidence to the effect.

[MOON Ki]

I don't see why the caveat that it is unlikely. It is possible and it is likely. Bensouda has openly accused Muthaura of killing witnesses. She has made similar insinuations against Uhuru. It is not impossible to get evidence to the effect.

Of course, he has done it.  And it is not impossible to get such evidence; but it is very difficult, and I highly doubt that Bensouda has it or is likely to get it any time soon.

The other reason has to do with the realities of the world: In theory, the court is independent of politics.   If, however, you look carefully at what happened at the last sessions of the Assembly of States Parties and the various "after-effects", you will realize that at least part of the court is beginning to accept political realities with respect to the ASP.    In the present circumstances, it would be unhelpful to arrest Uhuru.   (Bashir, on the other hand, is in a very different basket.)     That is why Bensouda would need some very strong evidence, which I doubt she has.