Suit to block Raila, Uhuru at Supreme Court


DC legal minds, what do you think about this.

Can these people be blocked or is it too late in the day?

How about the conditions the petitioner wants fulfilled eg  carrying out a fresh elections in 60 days?


By Wahome Thuku

NAIROBI, KENYA: The battle to block top presidential contenders and their running mates from being on the ballots for the March 4 general election has been taken to the Supreme Court.

A petition has been filed at the Supreme Court challenging the qualification of presidential candidates Raila Odinga, Uhuru Kenyatta, Musalia Mudavadi, Peter Kenneth as well as running mates Kalonzo Musyoka and William Ruto to gun for the top seats.

Apparently the case has been lying silent at the Supreme Court registry since February 5, this year even as the High Court was grappling with four other similar petitions filed by NGOs and which were thrown out last Friday.

The Supreme Court petition has been filed by a voter Mr Isaac Aluochier who contends that the top presidential candidates should not have been nominated to vie for the seats as they were constitutionally unqualified.

His petition has drawn the interest of one of the NGOs, International Center for Policy and Conflict (ICPC) who were petitioners in the High Court suits.

The ICPC is now seeking to be enjoined in the case so as to challenge the candidature of Uhuru and Ruto on the ground of their pending trial at the International Criminal Court (ICC).

“Mr Aluochier has raised one set of issues as the basis upon which these candidates should not be on the ballot. We want to be enjoined so that we can add in the questions of integrity based on the ICC cases and have the court determine the issues in totality,” said the ICPC executive director Ndungu Wainaina.

The petition by Mr Aluochier, a voter in Migori, is anchored on the argument that Raila, Uhuru, Mudavadi and Kenneth were already State officers when they were nominated by their respective parties hence should not have been cleared by the Independent Electoral and Boundaries Commission (IEBC).

The four still hold the state office of Prime Minister, Deputy Prime Ministers and Planning Assistant Minister respectively.

Article 137(2)(b) of the constitution states that a person is not qualified for nomination as a presidential candidate if the person is a state officer or is acting as one. The constitution only excludes the President, Deputy President and MPs from this condition meaning a holder of those officers can still run for the Presidency.

Mr Aluochier, a UK trained Quantity Surveyor claims the constitution does not exempt holders of other State officer such as that of the Prime Ministers, DPMs or ministers.

As long as you are holding one of those officers you must first resign before seeking nominations to become president,” he says.

He further argues the four cannot argue that they were MPs because by the time of their nominations, parliament’s term had already ended.

The petitioner says Kalonzo and Ruto violated Chapter Six of the constitution by holding State offices as MPs when they were officials of their political parties. As such they were disqualified being elected MPs which is a requirement for one to qualify to become president or deputy president.

The petition does not deal with integrity issues like criminal charges raised in the petitions handed by the High Court.

The Supreme Court has already ruled that it has the exclusive to hear and determine disputes arising from nominations of presidential candidates.

Last week the High Court threw out four petitions challenging the candidacy of Uhuru the jubilee alliance candidate and Ruto his running mate on integrity grounds.

Three judges ruled that only the Supreme Court has the jurisdiction to hear and determine petitions challenging the nomination of a presidential candidate and running mate as well as those challenging their elections.

Mr Aluochier argues that under the Elections Act a political party nominates unqualified candidate it commits an offence and shall be disqualified from nominating another candidates. He says the constitution requires the IEBC to perform its functions constitutionally in accordance with the electoral law.

“The IEBC and the commissioner breached their official duty in failing to ensure compliance with the constitution in the nominations,” he says.

Luckily, Mr Aluochier filed the petition just before the Supreme Court gazette presidential election petition rules set among other conditions that a petitioner must deposit Sh1 million in court as security.

The new rules also require a petitioner to pay more than Sh500,000 as court fees hence blocking many of those who can’t afford the money.

He has named Raila, Uhuru, Mudavadi, Kalonzo, Ruto, Kenneth as well as their respective political parties and all the commissioners of the IEBC as respondents.

He wants the Supreme Court to invalidate the entire nomination of the candidate, and declare that fresh process be carried out.

He is also asking that the March 4, elections cancelled and others scheduled within 60 days from that date, to allow for the fresh process.

But the petitioner says since he filed the case he has been pressing the Supreme Court to set a hearing date in vain.

On Friday, he was informed by the Registrar of the court that the matter had been taken before a conference of the judges to decide on its fate.

“It was the second case to be filed and I was told that it would be heard expeditiously since the Supreme Court is not busy,” he lamented “I think they want to wait until after the elections are held so that they can ask me to file a post-election petition and be subjected to all the stringent rules,” he said on Monday.

He wrote to the Chief Justice complaining about the delay in setting a hearing date. He said he had served all the parties electronically and though registered mail as required under the court rules.,-Uhuru-at-Supreme-Court



10 comments on “Suit to block Raila, Uhuru at Supreme Court

  1. High drama

    statement on the incident involving Hon Chief Justice at Jomo Kenyatta International Airport (JKIA) with my officials

    I Am alarmed by the incident that involved The Hon Chief Justice at Jomo Kenyatta International Airport (JKIA) with my officials, who insisted that he could not travel because he had not been cleared by Mr. Francis Kimemia. And would like to state the following;
    1.The immigrations act only bestows such powers to the Minister for immigration to regulate travelling of foreigners and not Kenyans
    2.The rights of any Kenyan to enter and leave the country at will are protected under the constitution. They include the right to acquire travel documents when required.
    3. For Kimemia to purport to instruct my officers is shameful and I demand explanation.

    4.In conclusion , while investigations on the conduct of the said officer are ongoing I would like to sincerely apologise to the Hon Chief Justice on the embarrassing incident.

    Hon Gerald otieno Kajwang –
    Immigration Minister


    • Phil,
      How in the world did Kimemia know that the CJ was traveling outside the country?
      Has he been conducting surveillance on Mutunga and if so why?

      Why did he want to stop him? What plans had he in mind to go as far as stopping the CJ from traveling?

      These are the kind of things that put Muthauras behind on fire at the Hague.


  2. Here is Mutunga’s full statement – scaring!


    Fellow Kenyans,

    I have called this press conference to inform the country of two separate but significant events that have occurred in the past one week. I have considered the possible implications of this public statement, but concluded that given the history of this country, such a public disclosure is warranted, necessary, and proper. This statement does not seek to cause alarm but to strengthen the resolve of each and every Kenyan to protect our Constitution, secure our transition, and affirm our future.

    On Monday, February 18, 2013, as I was sitting in the Judicial Service Commission interviews for the recruitment of the Deputy Chief Justice, my office received a poison-pen letter from the Mungiki Veterans Group/Kenya Sovereignty Defence Squad. The letter, which was dated Wednesday, February 13, 2013, makes all manner of threats against the Judges, ambassadors and my person. It warns against an adversarial ruling on the Presidential and Deputy Presidential candidacy of Uhuru Kenyatta and William Ruto. The letter extols the violent ‘exploits’ of the Mungiki movement and threatens dire consequences.

    This letter was posted only a day before my departure to Dar es Salaam, Tanzania, where I had been invited by the Tanzanian Constitution Review Commission to a one-day event to share my thoughts and experiences on Kenya’s constitutional experience. I was stopped at the Jomo Kenyatta International Airport (JKIA) by an Immigration Officer, who insisted that I could not travel because I had not been cleared by Mr. Francis Kimemia, the Permanent Secretary, Head of the Public Service, and Secretary to the Cabinet. I told the official that there is no constitutional, statutory, or policy basis or requirement that provided for the Chief Justice of the Republic to seek clearance to travel from the Head of Civil Service or anybody.

    Further, the said Circular that he was invoking to make this illegal demand and decision did not — rightly so — even have the Chief Justice listed among the Public Officials on it. It requires quite some courage, ignorance, or political patronage or a combination of all three for an Immigration officer, on his own motion, to summon the confidence to stop a Chief Justice from traveling, particularly in the face of a nonexistent circular! After much haggling, I did eventually travel. The Immigration Shift Supervisor kept insisting that they were awaiting instructions. However, I still find the insistence on permission from Mr Kimemia bizarre to say the least. Even more baffling was that the Chief Registrar of the Judiciary received a purported ‘Clearance to travel”letter by Mr. Kimemia dated February 14, stating ‘ has been noted the Chief Justice is travelling to Dar es Salaam, Tanzania’.

    Upon landing in Dar es Salaam, I received a telephone call from the Director General of the National Intelligence Service, Major-General Michael Gichangi, apologizing for the ‘small hiccup’ at the airport. I told the DG that a Chief Justice being gratuitously stopped by anybody from traveling cannot fit the definition of a small hiccup, however generous one may want to be. It has never happened on any of my numerous previous trips. I have, therefore, concluded that this is deliberate harassment; and whereas I was keen to have this resolved bureaucratically, I am convinced it is political, and public accountability requires that I make it public.

    These two incidents evidence a pattern of emerging harassment against my person, the Office of the Chief Justice, and the Judiciary — especially since no fewer than five (5) Judges have been attacked in the recent past, with some involving gun incidence – as we head into the elections.

    I, therefore, wish to state as follows:

    1. Kenyans have invested heavily in this country’s democratization, and this investment has resulted in a new Constitution. This Constitution must be protected and guarded jealously. Threats and intimidation of this nature against the Chief Justice, judges, or any other Kenyan or individual must be resisted actively, and rejected resolutely. I have given most of my life to a better Kenya and if taking it is what will be required to consolidate and secure our democratic gains in this election, or even thereafter, that is a price I am not afraid to pay.

    2. I have invested heavily in the past one and a half years in creating a new Judiciary. I have repeatedly given my pledge to the country that the Judiciary will not flinch in interpreting the Constitution as is required, a task we have executed very well. For the 2013 General Election, we have done sufficient ground work to handle both pre- and post-election matters in accordance with the law. On February 28, 2013, we shall hold a special session with all judges of the High Court to give Kenyans a final statement on our preparedness. Therefore, candidates or their supporters — real or claimed — should not panic. We shall decide all cases independently, and with scrupulous fidelity to the Constitution and the law. Let no individual, group, candidate, or supporter imagine that cowardly and darkly acts such as these will cower us. We have seen and overcome worse, and we will all soldier on for this country. None will be held hostage by a cabal of retrogrades.

    3. The Judiciary has, in a private correspondence, communicated to Mr. Kimemia as to the legal position on the matter of the ‘small hiccup’ to ensure it never occurs again.

    4. I believe that Kenyan security agencies, unless they willfully neglect or refuse to, have the capacity and resources to investigate the sources and partnerships of this threatening letter. To this end, I have this morning sent the letter to the Inspector General of Police, the Director of the Criminal Investigations Department, Director of the National Intelligence Service, and the Director of Public Prosecutions to investigate this matter and give the country a progress report. I am also asking the Inspector General of Police to take the necessary steps to enhance the security of judges and other judicial officers at this time.

    5. If anybody, any candidate, any party, any agency, or any other actor thinks that it will bend the ear, mind and resolve of this Chief Justice to do anything that is unconstitutional or illegal, then they are mistaken. On any matter that will come before me or the Supreme Court, I and the Court shall operate strictly within the confines of the Constitution. Intimidation and threats are uninvited guests and will not be hosted in the execution of our mandate.

    6. The political class must choose whether, either through direct pronouncements or suggestive behaviour, they want a peaceful, democratic and fair election free from the ring of rigging and intimidation, or whether they want to put the country on a path of violence. Whatever choice the political class and leadership makes, they must remain aware that ultimately, the people of Kenya and the rule of law will triumph. The Judiciary is playing its part in protecting and upholding the Constitution; let Kenyans also do their part.
    7. I appeal to Kenyans to hold a peaceful election. It is only by so doing that we shall silence these dark forces of retrogression and also advance our constitutional and democratic promise. My fellow Kenyans, with confidence and tribute to the nation, go and vote for our Constitution. It is the only way to reject those who threaten and proclaim violence as a false choice.

    Thank you.

    Hon. Dr. Willy Mutunga, D. Jur., SC, EGH
    Chief Justice/ President, Supreme Court of Kenya


    • `
      If there’s anything that’s going to help sink Uhuru Kenyatta’s candidacy it is these two events of this week.

      1) The intimidation of Chief Justice Mutunga and other Judges

      2) Uhuru’s withdrawal from the presidential debate covering the land question

      This is the best evidence that Kibaki’s security forces are planning to rig the election and abridge the rights of Kenyan citizens to chose their own government.

      It affirms CORDS statement last week regarding the not-so-surreptitious meetings that have been previously held by head of civil service Francis Kimemia, NSIS Director General Michael Gichangi, the Chief of General staff (armed forces) Maj. Gen. Karangi, and CID boss Muhoro Ndegwa.

      And without doubt — the Mungiki question has popped up again just around elections.

      This is why former head of civil service Francis Muthaura is behind the dock at the Hague…but it appears people never learnt a thing or two…or rather, that impunity barons have so much stake they are willing to poke ICC in the eye with the advance assumption they will get away with it.

      I take the intimidation of Chief Justice Mutunga very seriously. I am very glad he went public with it. His press statement has already hit international headlines in CNN, BBC TV and Al Jazeera.

      The entire world is watching in real time, Kenya’s impunity barons set the stage for yet another attempt at a civilian coup.

      In a way, i think it is a blessing in disguise to CORD…these antics will likely backfire spectacularly. Citizens do not generally like to be intimidated by rogue and arrogant characters like the Gichangis and Kimemias. They are not helping Uhuru Kenyatta when they show their bullying tendencies. With these Nyayo-era intimidation tactics, natural sympathy pours towards CORD.

      I have always held that the biggest shortfall of NARA was its failure to hold to account the architects of rigging of the last election — including ECK insiders like the late Kihara Mutu, the former ECK IT officer (Chege), and the numerous returning officers who switched their phones off as they altered form 16As. These are all people who took rigging instructions from the head of civil service and provincial administration — under threats and intimidation from APs, GSU and riot police. They all got away scot free. Impunity was tolerated…and is likely to be repeated.

      Do Kenyans remember the advent of multiparty elections and the associated pre-election tribal clashes common during the Moi era (in 1992 and 1997)? The common denominator was that this violence was state instigated…with the specific aim of intimidation of voters and election officials.

      If anyone thinks this practice ended during the Kibaki regime, you couldn’t be more wrong. In 2007, Kibaki unleashed his own form of state-instigated violence that rigged him and forced him back to power. The Mungiki was handily used alongside GSU, AP, riot police, to execute the same. Meetings were held at State House to plan the rigging and ‘necessary’ killings. Aren’t we seeing an emergence of the same script yet again? Head of civil service—top security honchos—Mungikiand the same playbook. They only need to rope in IEBC and the Judiciary and its Bingo!

      Why is it that a banned (unlawful) group called Mungiki keeps rearing its ugly head each time elections approach?

      Kenyans are being told they do not have a right to change their government through a clean election. They will be given a new government by wakina Kimemia, Gichangi and Karangi. The Judiciary is being told they have no choice but toe the line drawn by wakina Kimemia. Isn’t that the message?

      Threatening the Judiciary — to force rulings favourable to Uhuru Kenyatta also reinforces the importance of this election in guaranteeing future independence of the Judiciary. It will definitely be under threat should Jubilee come to power…because wakina Uhuru will definitely need cover from it. The myriad cases against Ruto would need to be immediately quashed…anticipated integrity cases against Uhuru and Ruto would need quashing…and all that nonsense.

      To secure the Judiciary from these anticipated assaults…Kenyans have little choice but to reject the Jubilee coalition on March 4th, 2013.


    • Folks,

      Its turning out to be much serious. Started with the letter leaked above by Prof. Makau Mutua. Recalling the outrageous allegations by Miguna that Mutunga provides constant legal advise to ODM and PM Makau Mutua, the pressure seems to be building as we approach elections.

      The serious threats to Chief Justice Willy Mutunga have just been revealed:

      – he recently received threats over the integrity case that involved Jubilee presidential candidate Uhuru Kenyatta and William Ruto.

      – the letter warned him of dire consequences from the dreaded Mungiki sect.

      – CJ accused the State of harassment and recalled an instance when an immigration official tried to bar him from travelling out of the country to Dar-es-Salaam, since he did not purportedly have clearance from the Head of the Civil Service Francis Kimemia.

      To me, it all points to election manipulation and/or refusal to honour ICC summons.


      • Christ knows how this is going to help Uhuru Kenyatta.
        Chief Justice Willy Mutunga has said attempts to threaten and intimidate the Judiciary will fail.

        Dr Mutunga said he had received a “poison-pen letter” from the Mungiki Veterans Groups/Kenya Sovereignty Defence Squad making all manner of threats against judges, ambassadors and himself.

        “The letter warns against an adversarial ruling on the presidential and deputy presidential candidacy of Uhuru Kenyatta and William Ruto. The letter extols the violent ‘exploits’ of the Mungiki Movement and threatens dire consequences,” said CJ.

        Dr Mutunga said Head of Public Service Francis Kimemia’s attempt to block him from travelling outside the country was politically motivated and an emerging trend of intimidating judges as the country heads to elections is worrying.

        According to the CJ, he was stopped by an immigration officer from travelling to Tanzania who insisted that he could not travel unless he is cleared by Mr Kimemia.

        Dr Mutunga said he was ready to sacrifice his life in defence of the Constitution.


  3. Interesting.

    I think there are too many different cases bing rolled into one. Somebody saying XYZ is a state officer (or other reason) and therefore ineligible as an original case is certainly different from somebody arguing a case that has already gone through the High Court process and has more or less been referred there. I think Mr. Aluochier’s arguments will be dismissed whereas ICPC’s arguments will be the subject of a major Supreme Court decision.


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