Friday, November 9, 2012

Why Uhuru, Ruto case could start afresh


By WAHOME THUKU
A case in the High Court challenging the eligibility of Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto to run for president faces a new hurdle.
Chief Justice Willy Mutunga must assign new judges to a three-judge Bench handling the case to replace Justices Mohamed Warsame and Philomena Mwilu. The Judicial Service Commission (JSC) appointed the two to the Court of Appeal.
The likelihood that the case would be overtaken by the elections timetable is real as Uhuru and Ruto move ahead with their plans to run on a joint presidential ticket inthe March 4 General Election.
Political parties must nominate their candidates by January 14, which is 45 days to the General Election. They must also sign and deposit their pre-election agreements with other parties with the Independent Electoral and Boundaries Commission by December 4.
Uhuru and Ruto might even be cleared by the IEBC to run before the case is heard and determined.
In the event that the court declares that they can’t run, it would have been overtaken by events, sources close to the matter told The Standard.
It is even possible that whichever way the High Court rules, the case could go all the way to Court of Appeal and the Supreme Court.
The two judges in the case, alongside Justice Isaac Lenaola were scheduled to rule on November 23 on whether the proceedings should be suspended.
A lawyer involved in the matter, but who asked not to be named due to its sensitivity, said they are awaiting directions from the court due on November 23.
“We don’t know if the judges would still be available to hear and dispose of the case before they leave the Bench, so we can only wait,” he said.
Ruto is widely expected to be Uhuru’s running mate in the race for State House under a pre-election deal drawn up by their parties, the United Republican Party (URP), and The National Alliance (TNA).
Co-accused
The International Criminal Court (ICC) has charged Uhuru and Ruto with crimes against humanity and their separate trials will begin in April, next year.
Uhuru’s co-accused is former Head of the Civil Service Francis Muthaura, while Ruto is charged alongside radio journalist Joshua arap Sang.
Uhuru, Ruto, and their lawyers insist there is nothing in Kenyan law barring them from running for State House, and plan to sign a pre-election deal to seal their alliance on December 4, at Uhuru Park.
But the promotion of Justice Warsame and Justice Mwilu might see the case start afresh unless Dr Mutunga directs the two to conclude it before taking up their new duties.
The two were promoted alongside Justice John Mwera, Justice GBM Kariuki, Justice Milton Makhandia, Justice William Ouko, Justice Daniel Musinga, and Justice Festus Anzangalala.
Also promoted were University of Nairobi, School of Law Dean, James Otieno, former Constitutional Court judge Sankale ole Kantai, Jamila Mohamed, chairman of the Kenya Law Reform Commission Kathurima M’Inoti, special corruption prosecutor, Patrick Kiage, former KACC vice- chair Fatuma Sichale, and lawyer Agnes Kalekye Murgor.
Judges Warsame and Mwilu were sitting with colleague Isaac Lenaola on the Bench constituted to hear the petition filed by two political activists early this year.
Abuse of office
The petitioners, Charles Omanga, Patrick Njuguna and Augustine Neto, now Ndhiwa MP, are seeking a determination on whether Uhuru and Ruto can vie for president or hold a political office with the ICC charges pending against them at the The Hague.
In September, the petitioners amended the case to include the names of Prime Minister Raila Odinga, his deputy Musalia Mudavadi, and Vice-President Kalonzo Musyoka as those whose integrity should be decided on.
They sought to include the three over varying allegations ranging from abuse of office, nepotism, corruption, and other claims made against them.
The three judges struck out the amendments last month leaving only Uhuru and Ruto’s names in the original suit.
Uhuru and Ruto are not parties in the petition that has been filed against the Attorney General Githu Muigai, but the court ordered they be served with the papers for them to decide if they wished to join the case since they are adversely mentioned.
Meanwhile the petitioners filed an appeal against the ruling at the Court of Appeal.
Raise tensions
They also filed a separate application before the three High Court judges asking them to suspend the proceedings pending the hearing and determination of the appeal.
The Law Society of Kenya (LSK) has been demanding that the case be taken over by the Supreme Court and determined expeditiously.
The LSK fears that a declaration by the High Court at the eleventh hour that the two aspirants are not constitutionally eligible to contest the presidency could raise tensions.
This is because the ICC cases have been heavily politicised, with some of the suspects and their supporters having alleged in the recent past that they were meant to block them from vying for president.
“Even a judgement made in December would still have a negative reaction and may create violence,” said LSK chairman Eric Mutua.
Yesterday Mutua insisted that the matter should go to the Supreme Court and concluded there. He said the case is unlikely to proceed on November 23.
In October, Mutunga said judges would always be allowed to complete matters pending in their courts before taking up new roles.





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