The High Court will Tuesday start hearing a petition that could determine the fate of two presidential aspirants facing trials at the International Criminal Court.
A three-judge bench of Mohammed Warsame, Isaac Lenaola and Philomena Mwilu will determine the suitability and integrity of Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto to vie for the top seat despite being accused of crimes against humanity.
The petition was filed by the Kenya Youth Parliament, Kenya Youth League and a group of 230 IDPs seeking a declaration that the quest for presidency by Mr Kenyatta and Mr Ruto despite the ICC ruling that they have a case to answer is a threat to the Constitution.
Justice Lenaola temporarily stopped public debate on whether the two could vie pending the hearing and determination of the petition; an order he later lifted and referred the matter to the CJ for directions after ruling that it raised constitutional questions which could only be determined by a bench of three judges.
The petitioners, through lawyer Anthony Oluoch, are seeking a court interpretation of Chapter Six of the Constitution on Leadership and Integrity and whether the two should be eligible to vie for leadership positions.
According to Mr Oluoch, the court should issue a declaration that the candidature of Mr Kenyatta and Mr Ruto to run for the presidency despite facing trials at the ICC would be a recipe for chaos and perpetuate the culture of impunity in the country.
When the matter comes up for hearing, the petitioners will be seeking an order to permanently restrain the Independent Electoral and Boundaries Commission (IEBC) from accepting the nomination of any candidate who has been committed to trial for serious criminal charges under the Kenyan and International law.
The petitioners contend that a person committed to trial at The Hague will not be able to discharge his duties since he would be required to attend hearings on a full time basis.
According to the petitioners, Chapter 6 contemplates a leader who brings legitimacy and confidence to the people arguing that this would be negated if a person cleared to run for president is spending time defending himself at The Hague.