AG puts Uhuru, Ruto fate in judges’ hands

Attorney-General Githu Muigai has gone to the Supreme Court with a case that could dramatically reshape the politics of the 2013 election.

He has asked the judges, led by Chief Justice Willy Mutunga, to find ways of sealing holes in the Constitution by deciding whether the right to seek elected office is more important than the integrity provisions of the same Constitution.

In other words, if your integrity has been called to question, do you then lose your right to stand for office?

Many politicians and activists have argued that Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto, who have been charged with crimes against humanity at the International Criminal Court, should not run for president.

The ICC upholds a suspect’s innocence until they are proven guilty. The Kenya case does not start until after the March 4 election.

Mr Kenyatta leads The National Alliance (TNA) and could, according to some opinion polls, win the presidency, while Mr Ruto heads the United Republican Party.

The AG’s petition makes no specific mention of either Mr Kenyatta or Mr Ruto, neither does it directly address their particular legal predicament. But it asks for a clarification of the law which will determine whether they can run.

Prof Muigai also wants the court to rule whether or not petitions can be filed against presidential results in the first round and the run-off. In a 12-page affidavit, he asks the Supreme Court to rule whether the gender rule can be implemented in phases. (READ: Courts could alter race for the State House)

“The Attorney-General Githu Muigai has now petitioned the Supreme Court on the interpretation of two issues that have caused controversy in the legal fraternity and country at large. These are the one-third Gender Rule and the Presidential elections,” the State Law Office said in a statement on Tuesday.

Prof Muigai argues that while Article 38 of the Constitution guarantees every Kenyan political rights, Article 10 provides for national values and integrity of state officers, including holders of elective offices.

Reads Article 38(3)(c): “Every adult citizen has a right, without unreasonable restrictions, to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected to hold office.”

This provision, however, is restricted by Article 10 which binds all state officers to national values and principles of governance which include national unity, rule of law social justice, equality, good governance, integrity and accountability.

The petition comes barely a week after Prof Muigai told an ICC meeting in Nuremberg, Germany, that Kenya could ask the court to delay the trials until after the elections in the event of a presidential run-off.

The two presidential aspirants are accused alongside former Head of Civil Service Francis Muthaura and Kass FM Radio presenter Joshua arap Sang of bearing the greatest responsibility for the violence that killed 1,133 people and displaced 650,000 others. They have protested their innocence.

The ICC wants the trials to start on April 10, 2013, as set by the Trial Chamber. Human rights activists have also gone to court challenging the suitability of Mr Kenyatta and Mr Ruto to contest the presidency. The case will be mentioned on October 19.

The second matter that Prof Muigai seeks the Supreme Court’s interpretation is whether a presidential candidate who loses in the first round can challenge the results.

“There exists a lacuna in the Constitution as to what process should be followed to resolve any possible controversy that might arise, for example, challenging the results in the first round of a presidential election should there not be a clear simple majority winner.

"There is no express right to bring an election petition over a run-off. What happens where the runner-up position is contested, for instance?” he asks. He said the decision will help avert a crisis in the event of a dispute over results.

“There is need to come up with clearer rules before we get there. In the event that this Court does offer an advisory opinion, the same shall bring some form of finality as opposed to the matter being filed in the High Court, then appealed in the Court of Appeal and finally before the Supreme Court.

"This shall only bring rise to convolution of issues and protracted attempts at their resolution, yet time is of the essence as the elections are hardly six months away,” he says.

The third issue is the implementation of the gender rule which requires that not more than two thirds of elective seats are held by leaders of the same gender. This means in the next Parliament, there must be at least 117 women MPs. (READ: Gender rule still defies Kenya’s top law brains)

Prof Muigai argues that there is no guarantee that Kenyans will elect 117 women MPs to Parliament. “Indeed it is clear that there is no guarantee that the number of nominated persons from the lists of nominees provided by the political parties will ensure that at least one third of the members in each House will be of one gender.”

The AG states that the High Court has dealt previously with the gender rule issue, citing the case involving the Federation of Women Lawyer &others vs Attorney General of 20111 in which it was ruled that it could be achieved progressively.