The High Court has struck down key legal restrictions that sought to limit the political activities of retired presidents, ruling that leaving State House returns a former president to the status of a private citizen.
The ruling, delivered by Justice Bahati Mwamuye, declares sections of the Presidential Retirement Benefits Act unconstitutional. It also prevents Parliament from withdrawing or withholding a former president’s retirement benefits simply because the individual takes part in politics.
The decision has direct implications for former President Uhuru Kenyatta, whose continued involvement in political affairs has been the subject of legal and political debate since he left office in 2022.
Former president becomes a private citizen
Justice Mwamuye said the powers attached to the presidency end when a president leaves office.
“The office of President is held for a constitutionally defined period,” he said, adding that a former president no longer exercises the State’s executive and coercive authority.
The judge said the former office-holder therefore occupies a different constitutional position after retirement.
He described the retired president as a private citizen who happens to have previously held the country’s highest elected office.
That reasoning formed the basis of the court’s finding that Parliament could not impose a broad political disability on a former president simply because of the office once held.
Justice Mwamuye also questioned the logic of giving former presidents a consultative and advisory role in public affairs while restricting their ability to participate in politics.
“It would therefore be constitutionally incongruous,” he said, for a former president to be regarded as someone whose experience can benefit the country while being prevented from taking part substantially in the political process.
Ruling differs from an earlier High Court decision
The decision comes less than three weeks after another High Court ruling took a different position on the political rights of retired presidents.
On September 3, Justice Lawrence Mugambi upheld Section 6 of the Presidential Retirement Benefits Act. He ruled that a former president could not hold political party office for more than six months after leaving office.
Mugambi said the restriction was justified by the unique political influence of former presidents. He also noted that the law did not prevent them from belonging to political parties or taking part in political activities generally.
Mwamuye’s latest judgment takes a broader view of the political rights of former presidents. According to the latest report, he declared Sections 4(1), 4(2) and 4(3) of the Act unconstitutional. The court also barred Parliament from using the law to withdraw or withhold Uhuru Kenyatta’s retirement benefits because of his political involvement.
The differing decisions mean the legal position surrounding retired presidents and political participation has become the subject of renewed constitutional debate.
Uhuru Kenyatta at the centre of the dispute
The case was brought by Sheria Mtaani and lawyer Shadrack Wambui in a wider challenge to provisions governing presidential retirement benefits. Earlier proceedings in the matter had also focused on attempts to review or potentially withdraw benefits belonging to former President Uhuru Kenyatta.
Kenyatta has remained involved in Kenya’s political affairs since leaving office. He has also continued to be associated with the Jubilee Party, although an earlier High Court decision held that a retired president could not retain formal party leadership beyond six months after leaving office.
The latest ruling does not erase the political debate over the role of former presidents. Instead, it places greater emphasis on their constitutional rights as citizens once their presidential term has ended.
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