A single petition asking Kenya’s High Court to determine whether Deputy Prime Minister Uhuru Muigai Kenyatta and former Cabinet Minister William Samoei Ruto can run for president while facing trial at the International Criminal Court (ICC) has morphed into at least two separate petitions.
This week, the High Court will give direction on how two separate petitions on the matter will be handled, following last week’s withdrawal of a petition that was first filed in January. When lawyer Ambrose Weda applied on Thursday to withdraw the earlier petition, he said that his client was making a “tactical retreat” and would soon be filing a more complete petition.
A three-judge panel reluctantly granted Weda’s application. “With heavy hearts and noting the immense public interest in the matter, we allow the application to withdraw the petition,” said judges Isaak Lenaola, Mohammed Abdullahi Warsame, and Philemona Mbete Mwilu in their ruling.
The immense public interest was visible in court as it was crowded with scores of people including two members of parliament and Maina Njenga, who was the leader of the Mungiki, a criminal gang that is the ICC Prosecutor has implicated in one of the Kenya cases. The previous court sessions on the matter have been muted in comparison with lawyers, journalists and a handful of ordinary citizens in court.
Outside the compound of the High Court on Thursday there was another crowd of scores of people waiting to hear what happened inside. They cheered loudly when they eventually heard that the petition had been withdrawn.
After the ruling on Thursday, Weda said that his client had wanted to expand the petition to include Prime Minister Raila Amolo Odinga, Vice President Stephen Kalonzo Musyoka, and the other Deputy Prime Minister Wycliffe Musalia Mudavadi. Weda has previously tried to include the three but failed. At the time he applied to include them, he had argued that this would help the court make a proper determination on the threshold leaders need to cross to satisfy the integrity standards set in the constitution.
The two petitions going through their preliminary stages in court this week broadly aim to have the court weigh on the same issue. The International Center on Policy and Conflict filed one petition on Friday. Its Executive Director Ndungu Wainaina told ICC Kenya Monitor that on Monday the High Court granted its application to certify the petition as urgent and set Wednesday for when a hearing date will be scheduled.
Wainaina said his organisation’s petition is asking the court to make an interpretation based on the constitution and the Public Officers Ethics Act whether an individual facing trial on charges of crimes against humanity can contest for public office in Kenya. He said the petition is also asking the court to determine whether other individuals who have cases in the Kenyan courts, or been prosecuted on abuse of office and other charges are eligible to run for public office. He also said the organisation is asking the court to order bodies such as the Independent Electoral and Boundaries Commission, which is overseeing the March 4 General Elections, to enforce whatever decision the court reaches.
Weda filed the other petition on Friday as well and he told ICC Kenya Monitor the High Court is scheduled to give directions on his case this coming Friday. Weda said that this fresh petition has a different petitioner from the one he had represented until Thursday last week. He said the petition asks the court to determine whether Odinga, Musyoka, Kenyatta, Mudavadi, and Ruto are eligible to run for president.
These separate petitions filed last week mean that it will take longer before the public know the court’s position on the different presidential bids. As they go through their preliminaries this week, the various aspirants are concluding discussions on pre-election pacts in an effort to beat a Tuesday deadline for such agreements to be submitted to the Registrar of Political Parties. The withdrawal of the original petition was unusual, especially 10 months after it was filed, in that it seems it is the petitioners holding back the process and not the judges, as has been the case in the past. Judges Lenaola, Warsame, and Mwilu said as much when two weeks ago they declined to grant Weda’s application to suspend the proceedings. They described the petitioners’ action as “sideshows” and “evasive.”