A petition seeking the High Court’s interpretation on chapter six on leadership and integrity has taken a new twist with a fresh application to stop the proceedings.
Two activists now want the hearing and determination of the petition stopped until an appeal they have filed against the striking out of the names of five presidential candidates is heard and determined.
Patrick Njuguna and Charles Omanga claimed that by striking out the names of Prime Minister Raila Odinga, Vice President Kalonzo Musyoka and Deputy Premiers Musalia Mudavadi, Uhuru Kenyatta and Eldoret North MP William Ruto the petition is now bare and cannot adequately deal with the issue of leadership and integrity.
“The main thrust of the petition is to deal with the question of integrity on the named five prominent Kenyans who are leading contenders for the presidency,” said the petitioners.
The two argued that they will appear to be acting in a discriminatory manner on issues of integrity if the petition proceeds without the five presidential aspirants being enjoined.
The petitioners, in their original application, had sought an order to restrain the electoral commission from accepting the nomination of any candidate who has been committed to trial for serious criminal charges under the Kenyan and International law.
According to the petition, the implication of the charges by the ICC meant that the two are committed to trial and that they will bring embarrassment to the country if elected and at the same time being tried for crimes against humanity.
The original petition was filed in January in the wake of confirmation of charges against Mr Kenyatta and Mr Ruto at the ICC by a group of civil society activists and Internally Displaced Persons (IDPs) seeking a declaration that the candidature of the two is a threat to the Constitution.
They sought an interpretation of Chapter 6 of the Constitution on leadership and integrity claiming that the candidature of Mr Kenyatta and Mr Ruto would be a recipe for chaos and perpetuate the culture of impunity in the country.
Later Mr Njuguna and Mr Omanga made an amendment to include the integrity of Mr Odinga, Mr Musyoka and Mr Mudavadi citing allegations of fraud, corruption, abuse of office, nepotism and land grabbing.
They accused the PM of fraudulently acquiring his post-graduate degree in Germany and being involved in events that caused the 2007/08 post-election violence and the attempted military coup of 1982.
The activists accused the Vice President of using his office to acquire radio frequencies for a company owned by his wife and for authorising the sale of the Somali embassy in Nairobi.
They accused Mr Mudavadi of committing perjury during the Goldenberg Commission of Inquiry by misleading the commission on his role in the scandal and that he grabbed land owned by the City Council of Nairobi.
However, the other petitioners disowned the amendments and asked the court to strike it out and only determine the original petition which challenged the suitability of Mr Kenyatta and Mr Ruto to contest the presidency.
They argued that the amended petition amounted to serious misjoinder since their original petition was about the confirmed charges against Uhuru and Ruto at the International Criminal Court and that its intention was to turn the court into a battle ground to settle political scores.
A three judge bench of Mohammed Warsame, Isaac Lenaola and Philomena Mwilu upheld the preliminary objection to the amended petition and struck out the names of all the five presidential candidates.
The judges ruled that only the original petition which sought to restrain the IEBC from accepting nomination of any candidate facing a criminal charge should be heard.
The hearing was however adjourned after the two activists filed the application to stop the proceedings until the appeal against the striking out of the names is determined.
Justice Lenaola directed them to serve all the parties and set November 23 for the hearing.