Uhuru, Ruto integrity case ruling due next week

By WAHOME THUKU

Nairobi, Kenya: Eyes will be on the Judiciary as it delivers a historic ruling in the next one week over whether or not Jubilee presidential candidate Uhuru Kenyatta and his running mate William Ruto can vie for the March 4 General Election.

This follows the conclusion of a case challenging their eligibility to contest the presidency in line with Chapter Six of the Constitution on Leadership and Integrity following their expected arraignment before the International Criminal Court on, among other charges, crimes against humanity.

In their decision, the judges will certainly be keen not to make pronouncements that could affect the cases pending before the ICC.

The judges could go by the International Centre for Policy and Conflict’s position and hold that the petition is not about the candidature of Uhuru and Ruto, but about whether or not anyone else facing such charges can hold a State office when facing such charges.

They may then decide that a person facing heinous criminal charges cannot hold a State office, in which case the IEBC would have to go by that determination and revoke Uhuru and Ruto’s nomination for the Jubilee ticket.

Alternatively, the court may decide that the case is a dispute over the candidature of the two politicians, and hence they have no jurisdiction to determine the case.

In that scenario, the petitioners would be at liberty to take the case directly to the Supreme Court.

Still, the court could decide that it cannot rule on the integrity of the candidates for the time being, as the matter was pending before the ICC.  They would then hold back from issuing any orders that may affect the cases.

With such a ruling, the candidates would remain on the ballot but the question of their integrity would still be open to debate and future determination.

Want suit dismissed

When the case concluded Wednesday, both Uhuru and Ruto urged the High Court to dismiss the suit and allow Kenyans to decide whether or not they should lead the country in the March 4 General Elections.

Uhuru also used new developments in the ICC to seek the 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 authority to determine presidential election disputes as it was the Supreme Court’s mandate.

The Independent Electoral and Boundaries Commission (IEBC) and the Attorney-General, who submitted that the petitions were in the wrong forum, echoed the sentiments.

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 – the ICPC, Kenya Human Rights Commission, 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 that they should be barred from contesting.

Uhuru’s lawyer Evans Monari argued that the star witness number four who linked the Deputy Prime Minister 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 whose evidence the Chamber heavily relied on 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 decided to determine the question of integrity, it would be obstructed by the fact that the ICC prosecution has rejected witness number four.

 “Even if you open that case and see if it has an 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 and whipping up Kenyans’ emotions against the candidates.

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

“Where bodies have been specifically mandates 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 Supreme Court decision that it had exclusive authority to deal with presidential election disputes, including nominations.

Usurp powers

He said the High Court’s jurisdiction was 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 the leadership of the country and leave it to the electorate,” he submitted.

Mr Kibe Mungai, for TNA, said the words ‘eligibility’ and ‘suitability’ as used by the petitioners are not defined in the Constitution and should not be the basis for determination of the case.

He said there was no dispute filed before the IEBC challenging Uhuru and Ruto’s nomination by the Jubilee alliance.

He said the orders sought would affect millions of Kenyans 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 could only deal with a matter if a Kenyan court under the doctrine of complementarity is not dealing it with, hence the Kenyan courts should respect the position if a case is before the ICC.

He told the court that presidential candidature issues belonged to political forums and the people should resolve disputes.

But lawyer Lempaa Suyianka, for the 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 of integrity as demanded by the rule of law,” he said.

Ruto and Uhuru’s trials begin on April 10 and 11 at The Hague.

Uhuru is charged with the former Head of Public Service Francis Muthaura, while Ruto is charged with radio journalist Joshua arap Sang.

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