The Kenya Kwanza presidential candidate and his running mate will have to wait for the determination of a case filed blocking their swearing-in-should they be declared winner of the just concluded Tuesday Election.
The court yesterday admitted to hearing an application filed by 11 activists seeking to bar the swearing-in of William Ruto and Rigathi Gachagua if the electoral commission declares them winners of a presidential election.
Kenya Kwanza duo are now fighting for the dismissal of the case. According to the apex court’s deputy registrar Bernard Kasavuli, the file will be placed before Deputy Chief Justice Philomena Mwilu for the appointment of a five-judge bench to determine the activists’ bid.
He further elaborated that the parties in the suit will later be informed about the decision of the court on the request by the activists.
“The file to be placed before the Deputy Chief Justice for empanelment of a bench to hear and determine the application on record. Parties to be informed when the ruling will be delivered,” stated Kasavuli.
The yet-to-appointed bench will also listen to the objections raised by the electoral commission, Ruto, Gachagua and United Democratic Alliance (UDA) party.
Independent Electoral and Boundaries Commission (IEBC), on the other hand through its chairman Wafula Chebukati, in a joint response to the suit, said the apex court does not have the powers to deal with the issues raised by activists regarding the eligibility of Ruto-Gachagua ticket due to integrity issues on the latter.
Both the DP, Gachagua and their party UDA in a separate joint response said the court does not only lack the powers to hear the case but also that the suit is “incompetent and incurably defective both in form and in substance and is therefore untenable”.
“The petition is an abuse of the court process and it amounts to forum shopping in that the petitioners have filed a similar petition at the High Court constitutional division where they are seeking similar orders and based on the same set of facts,” UDA lawyer Elias Mutuma, Ruto and Gachagua said.
Mutuma further argued that the activists prematurely and wrongly invoked the authority of the Supreme Court to hear and determine constitutional matters.
“This court can only sit as a court of the first instance in such a matter pursuant to the provisions of Article 140 of the constitution (questions as to the validity of presidential election). This matter offends the doctrine of exhaustion as regards the avenues of recourse available in the constitution, the Elections Act and IEBC’s rules of procedure on settlement of disputes,” comments Mutuma.
Gachagua’s eligibility was challenged by activists at a High Court that saw the state seize his KSh202 million alleged dirty cash and an ongoing graft case. The cases are still pending in court.
They claim that Gachagua is unsuitable to hold office and that the decision of Ruto to nominate him as running mate was invalid and consequently that their participation in the presidential polls was illegal.
Mutuma said: “There exists no basis for the court to issue the orders (sought) since the criminal matters relied upon in support of the application are still pending in court.”
He added that the suit is a pre-election dispute and has been overtaken by events since elections already took place and are only awaiting the conclusion of the tallying process, an announcement of the results and the gazettement of the winning candidates.
“The instant suit is thus at this juncture prematurely instituted before this court as an election dispute but clothed as a pre-election dispute. We submit that the petitioners ought to hold their horses and move to this court appropriately as a court of the first instance in such a matter as provided for by the provisions of Article 140 of the constitution,” said Mutuma.
In addition, the lawyer argued that there is no risk of Ruto and Gachagua being immediately sworn into office if they are declared winners.
“The constitution and the Election Act have a well-established mechanism which provides for a waiting period of seven days for anyone to petition the Supreme Court to challenge the validity of the president-elect to occupy the office.
There is, therefore, no basis for any conservatory orders to be issued since they would serve no useful purpose,” he said.
In his view, the petition “amounts to putting the cart before the horse as no one has been declared president-elect”.
IEBC and Chebukati, on the other hand, said the suit should be dismissed because the petitioners are in effect urging the Supreme Court to usurp the agency’s independence, authority and mandate under the constitution, the Elections Act (2011) and the Elections (General) Regulations (2012) to nominate, validate or invalidate the nomination of candidates in a general election.
“The petition and the application should be dismissed as they seek this court to interfere and direct the IEBC on how to carry out its mandate under the constitution and the Elections Act,” said Chebukati and the commission.
Through lawyer Raymond Olendo, they explained that the activists should have filed their complaints against the nomination of Gachagua at the IEBC Dispute Resolution Committee.
The activists, through lawyer Kibe Mungai, want the Supreme Court to interpret the application of ethics and integrity law to persons seeking elective public offices.
Aware of the presidential swearing-in timelines, they want the top court to determine their case before August 26.
“The validity of the nomination of Gachagua is the subject matter of the petition and ought to be determined before Ruto and he are sworn into office if elected. Given the provisions of Chapter Six of the Constitution, swearing in of Ruto and Gachagua to office will constitute flagrant violation of Articles 3, 4 and 10 of the constitution,” said Mungai.
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