Uhuru, Ruto get green light to run for State House

By PAUL OGEMBA pogemba@ke.nationmedia.com  ( email the author)

Posted  Saturday, February 16   2013 at  00:30

In Summary

  • Judges reject case to stop Jubilee leaders from running in March 4 election, saying only the ICC can bar them; Cord welcomes ruling with 16 days to go
  • The two have not been convicted and as we have stated, citizens have a right to elect a person of their choice, rule judges

Jubilee Coalition presidential candidate Uhuru Kenyatta and his running mate William Ruto got the green light to contest in the elections after petitions challenging their suitability were dismissed.

A bench of five High Court judges ruled that despite the serious nature of the crimes facing Mr Kenyatta and Mr Ruto at the International Criminal Court, they are still presumed innocent until proven guilty.

“It is common knowledge the two have been indicted, but since Kenyan courts and the ICC are of concurrent jurisdiction, we cannot adjudicate over the same matter. Only the ICC can bar them to run for public office,” ruled the judges.

The ruling came as research firm Infotrack released an opinion poll showing Mr Kenyatta and Coalition for Reform and Democracy presidential candidate Raila Odinga are locked in a tight race ahead of the General Election next month, although the latter is enjoying a slight lead.

Justices Mbogholi Msagha, Luka Kimaru, George Kimondo, Pauline Nyamweya and Hellen Omondi, however, passed the buck to the Supreme Court by ruling that they had no jurisdiction to hear any petition relating to the nomination of presidential candidates.

The judges divided the landmark over two-hour ruling into three major categories; on the ICC cases against Mr Kenyatta and Mr Ruto, the jurisdiction of the High Court to hear any petition touching on presidential elections; and interpretation of Chapter Six of the Constitution on leadership and integrity.

Mr Kenyatta and Mr Ruto have repeatedly said that the people of Kenya who have a right to elect their leaders and the judges reinforced the notion, ruling that it is up to the people to decide.

“The two have not been convicted and as we have stated, citizens have a right to elect a person of their choice and the candidates have a right to contest. That right must remain the case and the court cannot take it away,” they ruled.

The judges were, however, quick to point out that their decision had not been influenced by the ongoing campaigns and the political mood in the country.

They said that although the purpose of the Constitution was to set high standards for people seeking public office, the court should be reluctant in offering their opinion in matters involving a political process.

On the question of the High Court’s jurisdiction to determine the suitability of Mr Kenyatta and Mr Ruto, the judges ruled that the process of presidential elections is a gradual one, starting from the nominations, and any dispute to that effect is a reserve of the Supreme Court.

“Although we have been urged to make a declaration on whether the nomination of the two is a violation of the Constitution, their qualification and suitability is an issue within the premise of the Supreme Court and we therefore lack the jurisdiction to determine the question,” ruled the judges.

They ruled that even if the two failed to meet the integrity test, questions should have been raised before the electoral commission which has powers, under Article 88 of the Constitution, to act on such complaints.

They said that those challenging the candidature of Mr Kenyatta and Mr Ruto had not tabled any evidence before the court that they raised the matter before the electoral commission and were turned away.

“The High Court can only intervene where a decision has been made, but in this case, the petitioners have not demonstrated that they invoked the statutes and whether IEBC violated the Constitution by accepting the nomination of Mr Kenyatta and Mr Ruto,” said the judges.

They added that the court must exercise the doctrine of separation of powers and that apart from the IEBC and the Supreme Court, only Parliament and the Senate can invalidate the election of the president and his or her deputy by passing a motion to impeach them.

On the court’s role in interpreting Chapter Six of the Constitution on leadership and integrity, the judges ruled that Parliament had already enacted appropriate legislations and set up constitutional bodies to deal with integrity.

“The Ethics and Anti-Corruption Commission is one institution empowered to inquire about the conduct of the candidates, but as it stands, no evidence was brought before us to suggest such an inquest was made by the petitioners,” ruled the judges.

In any event, the judges said, the integrity of a person must be weighed against the Bill of Rights which gives every Kenyan a right to hold public office and that the confirmation of crimes against humanity charges against the two are preliminary issues which cannot lead to presumptions that they are guilty.

They added that justice means the court should not interfere in areas which other constitutionally established bodies are empowered to resolve and that their power is only to decide what is law and not what it should be.

According to the judges, it would be prejudicial to the National Alliance (TNA) if its presidential candidate is disqualified and their supporters denied the chance to elect a candidate of their choice.

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