Deputy Prime Minister Uhuru Kenyatta, a key suspect at The Hague, has taken on Chief Justice Willy Mutunga over his statements on leadership and integrity issues.
And, curiously, Attorney General Githu Muigai came out backing Uhuru and Eldoret North MP William Ruto in a case challenging their eligibility to run for president while still saddled with the crimes against humanity charges at the International Criminal Court.
Githu dismissed the local case challenging their candidature on the grounds that it was unconstitutional. In a preliminary objection filed in court on Tuesday, the AG argued the case should be dismissed as it conflicts with the constitutional provision of presumption of innocence before a trial and it was based on “speculation and conjecture”.
The court, he argues, was being invited to enter the arena of legislation that constitutionally belongs to Parliament. “The petition is misconceived based on total misrepresentation and misapplication of the Constitution of Kenya and the legal process at International Criminal Court,” adds Muigai.
On his part, Uhuru wants the court to have Mutunga stopped from issuing statements, which he says have a bearing on his presidential ambition.
Uhuru registered his protest when a case challenging his candidature and Ruto’s came up for hearing on Tuesday. Patrick Njuguna, Augustino Neto, and Charles Omanga have filed the case.
Other parties to the suit are Kenya Youth Parliament, and Kenya Youth League. These parties argued that the two are suspects charged before ICC and therefore do not meet the threshold of the Constitution on Leadership and Integrity.
Interestingly, when the case came up for hearing on Tuesday, it faced another roadblock as two out of the three judges hearing it were reportedly indisposed, and, therefore, the case could not proceed.
Justice Isaack Lenaola, who is the third judge, informed lawyers for the three parties of the development, saying his colleagues Mohamed Warsame and Philomena Mwilu were indisposed. He adjourned the case to September 27.
However, before Justice Lenaola could adjourn the proceedings Uhuru’s lawyer Evans Monari hit out at Mutunga, saying his utterances through Press statements were of concern to his client.
Curiously, Ruto who has personally been sued with Uhuru was neither in court nor did he send any of his lawyers to represent him. “I would like to register protest on remarks of certain judicial officers. The Chief Justice has been issuing Press statements. It is not viable that the issue is discussed in this manner,” Monari said.
But before he could stretch his protest, Justice Lenaola said the rules of engagement are clear and neither judges nor advocates should make substantive comments on the case.
He directed the parties to minimise comments on the merits and demerits of the case. Early this year, Justice Lenaola issued orders stopping public debate on whether Uhuru and Ruto can run for president.
He gave the directive after parties in a suit before him, entered a consent allowing him to do so. The order was, however, vacated.
Mutunga is on record stating the Judiciary would ensure leaders who fail to meet the threshold of integrity as set out in the Constitution are not considered for public office.
Mutunga, who is also the president of the Supreme Court, and the one who will swear-in Kenya’s fourth President, has said the courts will defend the Constitution.
The CJ has equally promised to ensure courts uphold Chapter Six of the Constitution to weed out individuals who do not meet integrity and leadership standards.
Saying he would forever fight “in the trenches of reform,” Mutunga dismissed claims by a section of lawyers, MPs, and political leaders that Chapter Six of the Constitution on leadership and integrity stands suspended until a Bill is passed in Parliament to implement it.
His strong statement seemed to have excited Kenyans who have feared the worst, as Parliament and the Executive remained divided over Chapter Six of the Constitution that touches on leadership and integrity.
The CJ has been emphatic that the courts must be seen to uphold the spirit of the Constitution when it comes to interpreting Chapter Six, which he warned could still be used to vet those seeking leadership positions.
Mutunga is on record saying the Constitution must be upheld and followed to the letter by the courts to ensure people seeking to lead are held accountable, and those who fail integrity and leadership thresholds are not appointed or elected to public offices.
The petitioners in the Uhuru and Ruto case have sued Muigai and named Independent Electoral Boundaries Commission and the Commission on Implementation of the Constitution as interested parties.
In addition, 213 Internally Displaced Persons are also party to the case. International Centre for Policy and Conflict, Kanu, The National Alliance Party, and several individuals have joined the suit as interested parties. Dr Stephen Njiru is an amicus curie (friend of the court)
It is the petitioners’ contention that allowing Uhuru and Ruto to run for public office would amount to perpetuating impunity.
Also sought by the petitioners is an order barring IEBC from accepting nomination or election of any candidate accused of committing serious offences under the international law or Kenyan law, until they are cleared.
In addition, they want a declaration that allowing the two to vie for president was a threat to the Constitution.
Further, they want the court to determine whether presumption of innocence in favour of Uhuru and Ruto overrides public interest to ensure protection and upholding the principles of the Constitution.
Also being sought for is a declaration that presumption of innocence of the two does not override public interest.
By JUDY OGUTU, The Standard