Uhuru, Ruto to know their fate next week

By Wahome Thuku

Nairobi, Kenya: Jubilee Alliance luminaries Uhuru Kenyatta and William Ruto have urged the High Court to dismiss an integrity suit against them and allow Kenyans to decide if they should lead the country after March 4, general elections.

Uhuru, the Jubilee Presidential candidate also used new developments in the International Criminal Court (ICC) to seek for dismissal of the Kenyan case. He singled out the rejection of a prime witness number four by the ICC prosecution, as a basis to argue that there was no evidence that could be used against him in the two cases.

In their final submissions before a five-judge bench, the two politicians said the High Court had no legal authority to determine presidential election disputes as that is the mandate of the Supreme Court. The sentiments were echoed by the Independent Electoral and Boundaries Commission (IEBC) and the Attorney General who submitted that the petitions were in the wrong forum.

They submitted that disputes on the nomination of Uhuru and Ruto as presidential candidate and running mate respectively should have first been filed before the IEBC.

The cases have been filed by four NGOs, Centre for Policy and Conflict (ICPC), the Kenya Human Rights Commission (KHRC), the International Commission of Jurists (ICJ) Kenya and Public Corruption, Ethics and Governance Watch.

They are seeking a declaration that Uhuru and Ruto’s candidature is contrary to the spirit of Chapter Six of the Constitution and they should be prohibited from contesting.

Uhuru’s lawyer Evans Monari argued that the star witness number four who linked him to the Mungiki sect before the Pre-Trial Chamber of the ICC had been dropped from the list of witnesses by the prosecution because of integrity issues.

This was the witness on whose evidence the Chamber heavily relied to confirm the charges against Uhuru.

“The whole of the ICC case against Uhuru is built around the evidence of witness number four which was adduced before the Waki Commission, the Kenyan National Commission on Human Rights and the Pre Trial Chamber.

Monari said if the High Court decides to determine the question of integrity it would be obstructed by the fact that witness number four has been rejected by the ICC prosecution.

“Even if you open that case and see if it has integrity issue you will find nothing to make him stand trial.

He said the petitions had been filed by NGOs funded by the open society of America with an objective of disrupting democracy, whipping emotions of Kenyans against the candidates.

Lawyers argued that the Parliament had passed several laws and established bodies such as the Ethic and Anti-Corruption Commission to determine issues of integrity.

“Where bodies have been specifically mandated to handle issues, they should be left to do so and the courts should not usurp their mandate,” said lawyer Nani Mungai for the IEBC.

He said the High Court could not go against a decision of the Supreme Court that it had exclusive authority to deal with presidential election disputes including nominations.

He said the High Court’s jurisdiction is limited to reviewing the decisions of the IEBC on nominations and should not usurp powers granted to other bodies.

Ruto’s lawyer Katwa Kigen appealed to the court not to take away people’s rights to decide who becomes their leader.

“You should restrain yourselves from being the ones to determine leadership of the country and leave it to the electorate,” he submitted.

"Eligibility and suitability"

Mr Kibe Mungai for TNA said words eligibility and suitability used by the petitioners were not defined in the constitution and should not be the basis for determination of the case. He said there was no dispute filed before IEBC challenging nomination of Uhuru and Ruto by the Jubilee alliance.

He said adding that the orders sought would affect millions who are members of TNA and support the jubilee candidates and would be denied their right to participate in meaningful elections.

Mungai said the ICC can only deal with a matter if it’s not being dealt with by Kenyan court under the doctrine of complementarity hence if a case is before the ICC the Kenyan courts should respect that position.

He told the court that issues of presidential candidature belong to the political forum and the disputes should be resolved by the people themselves.

But lawyer Lempaa Suyianka for petitioners argued that Article 140 of the constitution only mandated the Supreme Court to deal with petitions against a presidential elect.

“Our petition is not about presidential election but state offices. Those seeking those offices must be taken through the test for integrity as demanded by the rule of law,” he said.

The trials for Ruto and Uhuru at The Hague begin on April 10 and 11. Uhuru is charged with former Head of Public Service Francis Muthaura in the second case, while Ruto is charged in the first case with radio journalist Joshua arap Sang.

Earlier the five judges rejected an application to adjourn the hearing to enable Uhuru produce the ICC proceedings. The judges will give a ruling on Friday next week.