Mathira MP Rigathi Gachagua has been sued in a constitutional case seeking an interpretation on the application of ethics and integrity law.
At the heart of the case filed before High Court’s Justice Thande Mugure is whether persons who are before a court, facing criminal charges, or have unresolved integrity questions should be cleared to vie or locked out until their cases are settled.
Besides Rigathi, who is the United Democratic Alliance (UDA) deputy presidential candidate, Nairobi Senator Johnson Sakaja, Sirisia MP John Waluke, Nakuru West MP Samuel Arama and Marsabit Governor Mohamud Ali Mohamed have also been sued.
Others are Tharaka Nithi Governor Muthomi Njuki, former Nairobi Governor Evans Kidero, Garissa Governor Ali Bunow, Tana River Governor Godhana Dhadho, Kirinyaga Governor Ann Waiguru and Malindi MP Aisha Jumwa, Kapseret MP Oscar Sudi, Lari’s Jonah Mburu and Migori Governor Zachary Obado.
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They have also sued United Democratic Alliance and Attorney General Kihara Kariuki.
On Gachagua, the court is being asked to determine if he qualifies to be on the ballot as UDA presidential candidate William Ruto’s running mate after an anti-corruption court ordered him to forfeit Sh200 million to government, as they were proceeds of graft. Gachagua has since filed a notice to appeal the verdict by Justice Esther Maina.
He is also before a magistrate’s court facing criminal charges.
Sakaja is in court battling an allegation that he does not have a university degree after the Commission of University Education (CUE) revoked the recognition of the one he submitted to IEBC from Team University.
According to Kibe, EACC recommended to the Director of Public Prosecutions Noordin Haji to charge Ali and Waiguru. At the same time, Njuki, Sudi and Obado are all before the court charged with different offenses.
Jumwa’s academic papers were also questioned, but the case was dismissed by the court. The petitioners have raised the same issue.
Fit to deputise
According to Kibe, the Independent Electoral and Boundaries Commission (IEBC) did not vet Gachagua to determine if he was fit to deputise Ruto. He argues that there is likely to be a specter if the duo is elected on August 9 to lead the next government.
The petitioners are seeking an interpretation of whether following the judgment, the DP’s right-hand man is fit and suitable to hold any public office.
The petitioners, through their lawyer Kibe Mungai, have argued that IEBC has failed to observe the law in clearing the politicians, albeit either facing criminal charges, having unresolved integrity issues, are under probe or their academic credentials have been questioned.
They said the Ethics and Anti Corruption Commission (EACC) flagged 241 candidates who were subsequently cleared and gazetted to vie by the IEBC.
“The petitioners are aggrieved by the fact that in dealing with the issues raised by the report of the EACC, the IEBC has adopted a narrow, value-free and erroneous interpretation of its mandate and implementation of the relevant legal provisions in respect of the enforcement of Chapter Six of the Constitution,” Kibe said.
He added that only those who are as white as Caesar’s wife should be allowed to lead the country.
The court case filed by the group led by Kenneth Njagi and Mechack Suba surrounds the right to be presumed innocent until proven guilty against the right to have a democratic country with persons upholding integrity and ethics.
In what promises to be a defining case for the country, 12 petitioners want the High Court to revisit a 2013 judgment that endorsed President Uhuru Kenyatta and his deputy president William Ruto to vie in the then-presidential contest despite being before the International Criminal Court (ICC).
“Since the said 2013 eligibility judgment was delivered, courts have repeatedly but erroneously interpreted Articles 75, 99 and 193 with the result that Chapter Six of the Constitution is on the verge of becoming false prospectus full of hollow platitudes,” said Kibe.
Justices Anthony Mrima, David Majanja, Chacha Mwita, Thande Mugure and Eunice Ng’etich determined Uhuru-Ruto’s eligibility case.
Other petitioners are Jackson Mwalulu, Beatrice Kamau, Amos Wafula, Julia Wanjiku, James Maina, Simon Lokoma, Caroline Ayitso, Johnson Mwakaba, and Ann Wanjiku.
They argue that the integrity tests should not be left to the independent commissions only, but be a concerted effort cemented by the court.
“The effect of this scenario is that over the last two election cycles, the Kenyan State has been steadily criminalised in the sense that an increasing number of public officials is facing criminal prosecution, investigations and others have been convicted and quickly released on bail, pending appeals, even as they continue ‘governing’ their people,” said Kibe.
Justice Thande ordered them to serve the other parties and appear before the court on Friday this week.