By Wahome Thuku
KENYA: The High Court has made a major ruling, which politicians seeking elective positions may wish to look at. The decision could have a bearing in a case challenging the suitability of Jubilee Coalition luminaries Uhuru Kenyatta and William Ruto to hold public offices, as they face charges of crimes against humanity at the International Criminal Court (ICC).
On November 29, last year, three voters from Othaya Constituency led by Michael Wachira filed a petition at the High Court to block prominent politician Mary Wambui from succeeding President Kibaki as the area MP. Wambui had just declared her interest to succeed Kibaki on The National Alliance ticket.
Test of leadership
The argument by petitioners was that Wambui had no academic qualifications required for the seat. Secondly, they claimed Wambui had been mentioned in various scandalous reports and her integrity was questionable. She had been linked to the 2007/2008 post-election violence and the saga involving controversial presence in Kenya of two Armenians known as Artur brothers.
The petitioners argued that Wambui did not meet the test of leadership and integrity spelt out in Chapter Six of the Constitution and Leadership and Integrity Act. The questions of her integrity, competence and suitability had not been conclusively investigated and remained unresolved, they claimed.
They further argued there was sufficient and plausible information available for Attorney General and Director of Public Prosecutions (DPP), but they had failed to act on it.
They sought, among other orders, to have Wambui compelled to produce her academic papers, that AG be forced to produce Kenya National Commission on Human Rights and Waki Commission reports on post-election violence, the parliamentary report on investigation into the conduct of Artur Brothers and Kiruki commission report on the same.
Abuse of court
They also asked for orders compelling the AG and the DPP to investigate the allegations.
Based on the allegations, they sought a permanent injunction restraining TNA and the Independent Electoral and Boundaries Commission (IEBC) from clearing her for the seat.
Wambui’s lawyers John Khaminwa, Evan Monari and a Mr Njoroge filed a preliminary objection to the petition arguing that the court had not jurisdiction to entertain the case, that the petition was premature and an abuse of the court process.
Monari cited Article 88 (4) (e) of the Constitution, which provides that IEBC shall be responsible for disputes relating to or arising from nomination, but excluding election petitions and disputes. These provisions are restated in Section 34 (e) of the IEBC Act and Section 74 of the Elections Act.
The lawyer argued that there was no justifiable controversy, which the court was being asked to settle.
The facts set out in the petition were merely speculative, as Wambui had not even presented herself for nomination as a candidate for the Othaya seat.
“No decision has been made by any person or body in relation to any matter concerning Mary Wambui’s right to contest the Othaya parliamentary seat,” Monari said.
The petitioners’ lawyer, Mr Gachie Mwanza, opposed the preliminary objection saying the High Court under Article 165 has jurisdiction to deal with the matters set out in the petition.
He said the High Court had powers to listen to anything and to determine whether it has any merit. Gachie submitted that the court could not refuse to listen to an aggrieved party and that it should hear the matter and make a decision on it.
He said the case was founded on the provisions of Chapter Six of the Constitution and require the court to address itself to the declarations sought. The DPP and the AG did not make submissions.
After analysing facts of the case and the law, presiding Judge David Majanja ruled that the issue as to whether Wambui was qualified to contest the Othaya seat was not a matter for determination by High Court as per Article 88 (4) (e).
“It is a matter to be determined according to the procedures and mechanisms provided by law applicable to the entire electoral process,” Majanja ruled.
“I have considered the petition and supporting affidavit and I do not think that the petitioner has invoked any of the procedures or mechanisms prescribed by the Leadership and Integrity Act and there is no evidence that the petitioner has lodged any complaint or grievance relating to the 1st respondent,” the judge said.
Cause of action
On application to compel the AG and the DPP to inquire into the allegations against Wambui, the judge ruled that the petition did not disclose anything to show that any complaint has been lodged against her and that the AG and DPP had refused to act or acted contrary to the Constitution and the law.
“Apart from general allegation made against the 1st respondent, there is nothing in the petition that demonstrates any breach of Constitution,” Majanja said, holding that there was no cause of action against the AG and the DPP.
The court ruled that the petition was premature and that no justifiable case had been presented for determination.
“The fact that Wambui has expressed her intention to contest a parliamentary seat did not of itself give the petitioner the right to ask court to determine certain things relating to her conduct or qualification. Furthermore, the fact that there are allegations in public adverse to her does not create an opportunity for any party to move the court to deal with the issues raised by these swirling allegations,” the judge held.
He added, “This case is predicated on the fact that Mary Wambui may on some date in the future present herself for nomination as a candidate for elective office. She has not presented herself and this court can go no further than state that this case is premature.
Even if she presents herself to the nominating authority, that authority will be required to address itself to the constitutional requirements of the position and it is not for this court to substitute itself at this stage, as the body required to satisfy itself that she is qualified in all respects to be nominated as a candidate to vie for a parliamentary seat,” said the judge.
With that finding, the petition challenging Wambui’s candidacy was dismissed with no costs.
The writer is a court reporter with the Standard Group