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"content": "place when I was the President of Kenya. Therefore, in that connection, I want you, as the people of Kenya, to know, through your representatives, that I have not gone to the International Criminal Court (ICC) as your president. My trip to the ICC is not connected with my functions and the role you have given me as your President but I am going there as an individual Kenyan.” So, I want to take this opportunity to congratulate the President of Kenya, His Excellency Uhuru Kenyatta, for being courageous enough to balance between his obligations as an individual under international law on one hand, but also to make sure that he assures the people of Kenya that their sovereignty, authority and independence has not been assaulted by his trip to the ICC. The other thing that the President deliberately announced in his Speech was that as he goes to the ICC, the Deputy President, His Excellency William Ruto, will be acting as president. I have heard some commentators say, one, that this was not necessary; and two, that he did not have to say it because it is automatic that whenever the President is absent, the Deputy President becomes President. That is not true. The correct position is that it is upon the discretion of the President to decide when he cedes power to his deputy. The use of the word “absent” does not mean absent from Kenya. The use of the word “absent” is not equal to “absence from Kenya”. It is a word that is used so that the President can decide what “absence” means. In fact, if you ask me, I see a situation which happened two weeks ago, when the President can actually appoint his deputy to act, not because they are absent from Kenya; but they are in Kenya but absent from work. If a president, for example, wants to go and look at his farm for three days or one week without the pressures of the presidency and the functions that go with the Head of State, he can as well appoint through a gazette notice, the Deputy President, to act as President. Why? Because the President is absent. So this notion that every time the President goes, the Deputy President is acting President is not legally true. For him to be President, there must be an instrument - as it happened on 6th October 2014 – signed by the President conveying the specific powers, the duration of those powers and what jurisdiction the DP will have. Mr. Deputy Speaker, Sir, in ordinary circumstances, my assumption is that if the Head of State is outside the country, he may leave the Deputy President as the senior most member of the Executive. But in my view, that Deputy President, unless he has those instruments conveyed to him, is still Deputy President, and not President. The President could be in Namibia or New York and still act as the President of Kenya. It is in this context that the ceremony that took place at Harambee House happened, much to the excitement, bewilderment and confusion in some sections of the population. Mr. Deputy Speaker, Sir, this does not happen very often and you can count cases where a President has legally appointed his deputy to act. A case in point is the case of Nelson Mandela in 1994 just immediately after the independence of South Africa. One of his arch rivals was a gentleman called Mangosuthu Buthelezi, the leader of the Inkatha Freedom Party (IFP). When Mandela became President, he made Buthelezi the Minister for Interior. After a few months, Mandela had to travel and he needed to communicate The electronic version of the Senate Hansard Report is for information purposes only. A certified version of this Report can be obtained from the Hansard Editor, Senate"
}