The High Court of Kenya will issue its ruling next week in a case in which multiple petitioners have asked it to consider whether Deputy Prime Minister Uhuru Muigai Kenyatta and former Cabinet Minister William Samoei Ruto can run in the upcoming elections.
Principal Judge of the High Court Amraphael Mbogholi Msagha said the five-judge bench will make a judgement on February 15 after listening to lawyers for the petitioners, those representing Kenyatta, Ruto, the Independent Electoral and Boundaries Commission (IEBC) as well as the Attorney General’s representative.
The lawyers spent half of Wednesday arguing their points on whether the High Court is the right place to adjudicate the question of the eligibility of Kenyatta and Ruto to contest the presidency and deputy presidency in the election scheduled for March 4. They also argued their positions on whether Kenyatta and Ruto meet the threshold set out in the constitution on leadership and integrity in light of their upcoming trials at the International Criminal Court (ICC).
The court required lawyers to only highlight the key points of their arguments during Wednesday’s hearing because they had all been asked to make written submissions by Friday last week.
Suyianka Lempaa, who represents the first petitioner, the International Center for Policy and Conflict, argued the High Court had jurisdiction over the case because the constitution gave it original jurisdiction over all matters in Kenya. Lempaa further argued that even though the Supreme Court had jurisdiction over matters concerning presidential elections, this only applied where a president-elect had been declared and where results for the presidential election had been certified.
Lempaa also argued that the framers of the constitution included a chapter on leadership and integrity in the constitution because they were aware “Kenyans were singularly desirous of cleaning up [the country’s] political governance structures.” He further said that individuals seeking to be appointed to what are described as state offices in the constitution have been subjected to rigorous tests of integrity.
“We are saying that those who are seeking State Office must be taken through thorough rigorous vetting that other state officers are taken through,” Lempaa told the five judges.
Ambrose Weda, the lawyer for the second and third petitioners, was not in court to argue on behalf of his clients. The petitioners Weda represents, Charles Ndung’u Mwangi and the Public Corruption, Governance and Ethics Watch, had wanted to court to also consider the eligibility of Prime Minister Raila Amolo Odinga, Vice President Stephen Kalonzo Musyoka, and Deputy Prime Minister Wycliffe Musalia Mudavadi in addition to Kenyatta and Ruto. The five-judge bench dismissed the petition against Odinga, Musyoka, and Mudavadi last week because they had not been served with it.
The fourth petitioner in the case was not concerned with the eligibility of Kenyatta and Ruto but a politician seeking re-election to a National Assembly seat.
M. A. Nderitu, who represents the fifth and sixth petitioners in the case, also argued that the High Court is the right forum to determine the question of the eligibility of Kenyatta and Ruto to run for office. He also argued that though the constitution guarantees every one the presumption of innocence, Nderitu said that this “must be balanced against the national values and principles set out in the constitution.” The fifth and sixth petitioners are the independent Kenya Human Rights Commission and the Kenya Section of the International Commission of Jurists.
To support their arguments, Nderitu and Lempaa both referred to the High Court’s September judgement in the matter of whether Mumo Mutemu’s appointment last year as chairman of the Ethics and Anti-Corruption Commission met the constitutional threshold on leadership and integrity.
Stella Munyi, representing the Attorney General, who is listed as the first respondent in the case, argued it should not go forward because there was no dispute for the court to settle. Munyi submitted that the mandate to resolve the questions the court was being asked to consider was with other institutions and those avenues had not been exhausted.
“There’s no dispute before you and the court should not be allowed to deal with hypothetical and abstract issues,” Munyi said.
Nani Mungai and Sisule Musungu, who represent the Independent Electoral and Boundaries Commission, further argued that it was the exclusive jurisdiction of the commission to handle pre-election disputes and no issue concerning the eligibility of Kenyatta and Ruto had been brought before it. Musungu also said that the court’s role was only limited to reviewing the decisions of the IEBC.
Evans Monari, representing Kenyatta, said that he agreed with the comments of Munyi, Mungai, and Musungu.
“I urge you to find the petition is not only spurious but is an actual misuse of the court’s time and should be dismissed,” Monari said.
He went on further to say that in the submissions the ICC prosecution has made to the judges handling the Kenyatta case, the prosecution has indicated that they will no longer be relying on the testimony of witness number four because of integrity issues concerning that particular witness. Monari claimed that witness four was the pivot of the prosecution’s case against Kenyatta and therefore their case had collapsed.
“There is no case capable of standing trial before the ICC,” Monari said, implying that the reason for questioning Kenyatta’s eligibility no longer applied.
Monari also told the court that the petitioners are inter-related, receiving funding primarily from “the Open Society of America and whose objective is to disrupt the home-grown democracy, whose objective is whipping sentiments of the public against the candidates.”
Joseph Katwa-Kigen, representing Ruto, also argued that the court would be “usurping the powers of various institutions and various bodies,” if it adjudicated the case before it.
Monari, Katwa-Kigen, and Kibe Mungai, the lawyer representing Kenyatta’s political party, The National Alliance party, all argued that the court should leave the question of eligibility of Kenyatta and Ruto to the Kenyan people because under the constitution they had the sovereign right to choose their leaders.
“We pray you restrain yourselves from being the ones to determine the leadership of this country and leave it to the people,” Katwa-Kigen said.
Monari and Katwa-Kigen also argued that because the ICC is yet to determine the guilt or innocence of Kenyatta and Ruto then there is no reason to question their eligibility. They said that this is important because the ICC is recognized in law as a court of Kenya and as such the principle of complementarity applied.
“A lot of eloquence has been spent on the issue of complementarity. There’s no complementarity on civil matters,” Lempaa said in response to the arguments on complementarity.
He said that the ICC is only concerned with criminal matters. “So that issue of complementarity falls flat,” Lempaa said.
Chief Justice Willy Mutunga formed a five-judge bench to hear the petitions after they were consolidated into one case last month. The other members of the bench are Luka Kimaru, Hellen Omondi, Pauline Nyamweya and George Kimondo Kanyi.