Judges dismiss bid to block suit

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

Posted  Wednesday, February 6  2013 at  21:08

In Summary

• Civil groups argued that petition was not about the Jubilee partners but about Chapter Six

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Jubilee Coalition presidential candidate Uhuru Kenyatta and his running mate William Ruto put up a spirited fight to have an integrity case against them dismissed.

The two challenged the High Court’s jurisdiction to determine their suitability to vie for the county’s leadership despite facing criminal charges at the ICC, arguing that civil society’s were misusing the courts at the behest of foreign interests.

However, their attempts to have the case adjourned to seek more evidence to defend themselves were dismissed with the five-judge bench allowing the hearings to proceed and set the ruling date on February 15.

Mr Kenyatta through lawyer Evans Monari submitted that Parliament had already enacted and set up constitutional organs to deal with issues of integrity and accused the civil groups of seeking the court’s intervention before exhausting other avenues.

“The petitions are filed by individuals and civil societies funded by America whose objective is to cripple our democracy and water down the Constitution. It is an abuse of the court to bring up the case when there are Acts of Parliament which can address the issues,” said Mr Monari.

He argued that even if one was to presume to rule on the integrity of Mr Kenyatta based on the ICC case, there would be no evidence since the witness who allegedly implicated him had admitted fraud in his testimony and soon there would be no case against Mr Kenyatta at The Hague.

The civil groups, Kenya Human Rights Commission (KHRC), International Commission of Jurists (ICJ) and International Centre for Policy and Conflict (ICPC) however said their petitions were not about the two but about enforcement of Chapter Six of the Constitution.

Lawyer Macharia Nderitu representing KHRC and ICJ submitted that the issues of integrity were national values and integral parts of the Constitution which must be determined before one seeks public office.

“This is not a question of ICC or the eligibility of Kenyatta and Ruto but a question of enforcing provisions of the Constitution. Even presumption of innocence must be balanced against the national values to bring honour to the country,” said Mr Nderitu.

Mr Vincent Lempaa representing the ICPC submitted that the issues they had raised were highly justifiable to warrant the intervention of the High Court.

“Our petition has nothing to do with presidential elections. What we are saying is that anybody seeking public office must face the rigours of integrity and suitability as outlined in the Constitution,” said Mr Lempaa, as he dismissed claims that they were being funded by foreign countries.

Mr Ruto, through lawyer Katwa Kigen submitted that if the High Court will allow the petition then they would be usurping the powers of the Supreme Court and other constitutional bodies.

“What the petitioners are saying are mere speculations since there is no conviction against Mr Ruto. The only instance where one can be barred from holding public office is when he is convicted for six months and has exhausted all avenues of appeal,” said Mr Kigen.

The Attorney General through State counsel Stella Munyi supported Mr Kenyatta and Mr Ruto’s submissions to have the cases dismissed arguing that the court should not be called to decide on hypothetical issues.

Ms Munyi submitted that leadership and integrity were embedded in Acts of Parliament and the activists should have filed their complaints with the Ethics Commission before approaching the High Court.

Earlier while dismissing the application, judges Mbogholi Msagha, Luka Kimaru, George Kimondo, Pauline Nyamweya and Hellen Omondi ruled that the exclusion of the fourth witness’ evidence at the ICC, could not derail the conclusion of the integrity case.

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