What do Congo and Kenya have in common, except an obvious undying love for rhumba? The answer: politicians who stand accused at the International Criminal Court (ICC) and want to be president of their respective countries.

Former Congolese vice-president and senator Jean-Pierre Bemba, who has been charged at the ICC with two counts of crimes against humanity and three counts of war crimes, was unable to pursue his ambitions of leading Congo because he is detained in The Hague. Bemba is alleged to have committed the crimes when his Movement for the Liberation of Congo got embroiled in the 2002 to 2003 conflict in the Central African Republic. Bemba’s detention in The Hague, however, did not stop him from exploring the possibility of running for president in Congo’s 2011 election. It also did not stop other Congolese opposition leaders seeking his support for their own bids for the country’s top seat. In the end Bemba was not on the ballot, and his former ally-turned-nemesis, Joseph Kabila, was re-elected Congo’s president.

Kenya’s Deputy Prime Minister Uhuru Muigai Kenyatta and his former Cabinet colleague, William Samoei Ruto, are not as hampered in pursuing their presidential ambitions as Bemba was. Kenyatta, who faces five counts of crimes against humanity for his alleged role in the violence that consumed Kenya after the 2007 presidential election, is able to campaign freely because the court has not issued an arrest warrant against him. Ruto, who faces three counts of crimes against humanity for his alleged role in the Kenya violence, enjoys the same freedom. The two are free so long as they obey the restrictions the court set for Kenya case one, which involves Ruto, and case two, which involves Kenyatta. They are also expected to attend all trial hearings, which are scheduled to begin in April next year, about a month after Kenya’s election is held.

Everything appears smooth for the two individuals, except a court case in Kenya. Two individuals and two organizations are asking the High Court to interpret the leadership standards set out in the constitution and whether those would restrict people facing serious crimes charges from contesting for public office. The first day of hearings is scheduled to start this Tuesday.

The court case is driven in part by the continuing public debate in Kenya about whether Kenyatta and Ruto should even consider running for president, especially once the ICC pre-trial chamber ruled in January that they should face trial for the charges the prosecutor has filed against them.

The common sense view is that the two individuals should not run for public office until the ICC’s trial chamber determines their cases. This is not a comment on their guilt or innocence. It is a comment on the spirit behind the decades-long agitation in Kenya for a new constitution. This spirit, in brief, included an aspiration for a higher standard of leadership in Kenya that would help the country fulfil its potential. This aspiration was informed by the country’s collective experience of past bad leadership and a sense Kenya can and should do better. This is a moral argument that supporters of Kenyatta and Ruto dismiss.

They rely on two constitutional principles. One is that the constitution presumes any one facing a court case is presumed innocent until proven guilty. Therefore, they argue Kenyatta and Ruto should not be penalized and stopped from running for public office because they are facing charges of serious crimes at the ICC. The other principle they advance is the constitution provides that each citizen has the right to vote for the person of their choice. The implication being that by locking out Kenyatta and Ruto from the presidential race, their supporters will be denied their freedom of choice.

The general public is, however, divided on this issue. Independent polling company Ipsos Synovate conducted a survey on the issue between January 27 and February 1. The poll, which was released on February 20, found that the Kenyan public was almost split in half on the issue. This was about a week after the ICC pre-trial chamber’s January 23 decision that Kenyatta and Ruto, together with two other co-accused, should face trial. Ipsos Synovate also found that almost half of those polled believed that nothing will happen if either Kenyatta or Ruto is barred from contesting the presidential poll.

When Ipsos Synovate asked the same question between April 6 and April 17, the poll it released in May found that public opinion had shifted. More people opposed Kenyatta’s and Ruto’s presidential aspirations than those who supported their ambitions. Those opposing Kenyatta’s presidential aspiration rose to 49 percent in April, compared to 46 percent in January-February. Those supporting Kenyatta’s bid dropped to 44 percent in April, from 48 percent in January-February. Those opposing Ruto’s presidential aspirations rose to 51 percent in April, compared to 47 percent in January-February. Support for Ruto’s presidential bid declined to 42 percent, compared to 47 percent in January-February.

Another polling company found that more than half of respondents did not support any one facing a court case running for public office. Strategic Public Relations and Research interviewed 5,000 people between April 27 and May 2 and found that 56 percent of them did not support any one charged with an offence in court seeking public office. The company found, however, that a high number of people, about 42 percent, supported individuals facing charges in a court campaigning for public office. Strategic Public Relations and Research did not name Kenyatta and Ruto in the question they asked respondents but the answers are a comment on the bids of Kenyatta and Ruto as well as one of their co-accused at the ICC, Joshua arap Sang, who has indicated he may run for a national Senate seat.

Aside from the legal and moral questions facing them, Kenyatta and Ruto have not found the nuts and bolts work of political campaigning easy going. The law governing political parties and their operations has forced the two to do the hard work of building from scratch their political vehicles, recruiting members across the country and laying the infrastructure for these parties to be viable national organizations. The law demands political parties have offices in at least half of the country’s counties as well as a minimum of 1,000 members in each of those counties. These requirements are in the almost two-year old constitution Kenyans voted for in August 2010. Previously, political parties did not have to have a minimum number of members or even offices outside the capital Nairobi. Political parties were in essence the property of the rich and powerful.

The efforts of Kenyatta and Ruto to forge an alliance also have not gone far because of the myriad of interests they have to accommodate beyond their personal presidential ambitions. Although opinion polls consistently put Prime Minister Raila Amolo Odinga in the lead with at least a 10 point margin ahead of anyone else, there are too many variables that make the Kenyan presidential poll still wide open. One variable is that no aspirant crosses the 50 percent margin in opinion polls. This threshold is constitutionally decreed for a candidate to win an election in the first round. Another, which is not included in the opinion polls, is the views of Kenyans living outside the country. Kenyans in the diaspora will for the first time have the right to vote in the presidential election, and they are a huge untested factor.