Tag Archives: Jubilee

What does Kenya’s High Court ruling on the civil society challenge to Uhuru and Ruto eligibility for election say about the state of Kenya’s judiciary?

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The Nairobi media reporting is a bit garbled but the gist of things is that the Kenyan High Court (as opposed to the Court of Appeal or the Supreme Court) has dismissed a petition filed some months ago by civil society groups, including significantly the Kenyan Chapter of the International Commission of Jurists, challenging the eligibility of many of the candidates for President of Kenya on the basis of the “integrity” provisions of the new Kenyan Constitution.

Almost 13 months ago I posted that it was time for Kenya’s judicial system to answer the question posed regarding the application of these constitutional provisions to the candidacy of those facing confirmed charges from the International Criminal Court.  Unfortunately, even though the election has ended up being set for a delayed date, the Kenyan court system has still managed to let the clock seemingly run out without reaching any clarity or finality, such that the election is expected to proceed with the “Uhuruto” ticket on the ballot.

Without having a copy of an opinion yet, from the media reports, the High Court ruled that it did not have jurisdiction over the challenge because the constitution vests exclusive jurisdiction in the Supreme Court over challenges involving the nomination and election to the presidency and that further the jurisdiction of the Kenyan courts and ICC was concurrent and with the ICC case proceeding only the ICC could bar the indictees from running for office.

As an American rather than Kenyan lawyer, and having not read the opinion, I don’t want to go too far into the details here, but I would note that (1) Ruto as opposed to Uhuru is no longer running for president, so the practical question now for his eligibility is distinguishable; (2) the High Court has original jurisdiction to interpret the provisions of the constitution, which seems to me to clearly be the issue here–as opposed to a more ordinary nomination or election challenge which would seem to me to be a more plain way to interpret the various constitutional provisions as a whole.

Here is a long quote from the Daily Nation story “Jubilee, Cord plaud ruling on eligibility case”:

Mr Odinga on his part said he respected the ruling saying that the court had held that in matters relating to the presidential election, the Supreme Court had ‘exclusive and original jurisdiction.’

“I have repeatedly said that my main competitor should have the opportunity to face me in a free and fair election whose outcome is determined by the people of Kenya,” said Mr. Odinga upon hearing of the Court’s decision.

But Restore and Build Kenya (RBK) presidential candidate Prof James Ole Kiyiapi accused the judges of failing to give Kenyans directions on matters of integrity.

“By declaring that they lack jurisdiction, Kenyan courts have failed to give the country direction on matters of integrity as outlined in chapter six of the constitution,” he stated.

The five High court judges – Mbogholi Msagha, Luka Kimaru, George Kimondo, Pauline Nyamweya and Hellen Omondi – dismissed a petition filed by civil society groups challenging Mr Kenyatta and Mr Ruto;s suitability to run for the presidency and deputy presidency as they face serious crimes at the International Criminal Court (ICC).

The Judges ruled that despite the serious nature of the crimes facing Mr Kenyatta and Mr Ruto at the ICC, they are still presumed innocent until the contrary happens.

“It is common knowledge the two have been indicted but since Kenyan courts and the ICC are of concurrent jurisdiction, we cannot adjudicate over the same matter. Only the ICC can bar them to run for public office,” ruled the judges.

They ruled that the High Court had no jurisdiction to hear any petition relating to presidential candidates’ nomination.

So I tend to agree with Prof. Ole Kiyiapi that the High Court has ducked the issue and left a real lack of clarity as to the meaning of the constitution.  The problem is appeals and further proceedings are now unlikely to have time to be resolved before March 4.

Related articles

Fiasco

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“If how we did nominations is how we shall hold elections, God save Kenya,” Mituma Mathiu in the Daily Nation:

The political party nominations are a complete, utter fiasco, and they tell us a great deal about Kenya’s political culture.

First, and this is what puts the lives of all us in danger, is that politicians are a law unto themselves. . . .

When did Ruto and Uhuru fight? And why is the “Uhuruto” alliance allegedly so surprising?

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Today is the third anniversary of the “AfriCommons Blog”, so let me celebrate by being a bit direct.

I lived in Nairobi with my family during the last Kenya elections campaign and the duration of the post-election violence. I certainly saw both Uhuru and Ruto in Nairobi during the uncertain post election period, and they were on local television as well–serving in Parliament together and carrying out their functions as members of the political class. Never saw either with a police rifle, a panga or a can of petrol. No recollection of seeing either of them in the slums or other types of neighborhoods where most of the violence in Nairobi took place.

Rather, the ICC has accused them of being involved in the incitement, organization and funding side of the organized part of the post election violence or PEV.

I don’t recall ever seeing any indication that the two had any type of personal animosity between them or couldn’t get along between themselves. Could be, but not necessarily obvious from the context of funding militias and gangs in the hinterlands on opposite sides of a political tussle. In terms of the political debate it was Martha Karua that squared off with Ruto during the ECK “vote counting” at the KICC and the post-election negotiations.

When I moved to Kenya in June 2007, less than seven months before the elections, Uhuru and Ruto, along with Mudavadi, Raila and Kalonzo were in ODM-K (later to become ODM) and all were running against each other for the opposition presidential nomination through their mutual coalition. Uhuru was KANU leader and titular Leader of the Opposition in Parliament. They were all rivals, but all against Kibaki. Uhuru and Kalonzo split off the main ODM, with Kalonzo running as ODM-K nominee as a “third party” and Uhuru switching sides to Kibaki/PNU, presumably at least in part because he could not hope to get re-elected to his seat in Parliament in Central Province otherwise. (And maybe he was looking to 2012/13.)

If there was a question of anyone not getting along personally, it was more about Kalonzo and Raila than Uhuru and Ruto.

It just seems naive to me to be especially surprised that Uhuru and Ruto would hook back up–and most especially so when they are in a serious jam together with the ICC charges.

Did Uhuru oppose Moi because of Moi’s role in the related violence in the Rift Valley around the 1992 and 1997 elections? Seems to me he stayed in KANU and was anointed as Moi’s candidate for the succession in 2002. Perhaps if he did, as accused, get involved in using the Mungiki in post-election violence in Naivasha and elsewhere, could it have been for instrumental political reasons rather than some atavistic “tribalism”? Has Ruto ever supported a non-Kalenjin candidate before? (hint: Uhuru in 2002)