Petitions could lock Raila, Ruto out of State House race

Raila Odinga and William Ruto

Former Prime Minister Raila Odinga (left) and Deputy President William Ruto.

What you need to know:

  • The cases are considered urgent as the electoral commission is about to begin clearing candidates.
  • Deputy President William Ruto is facing constitutional cases related to his current position in government.

Deputy President William Ruto and former Prime Minister Raila Odinga are facing separate legal hurdles in their quest to clinch the presidency despite heightened campaigns and endorsements.

The combined six cases that are pending in the High Court relate to the interpretation of the constitution and the eligibility of Dr Ruto and Mr Odinga. If the court rules in favour of the petitioners, Dr Ruto, the Kenya Kwanza Alliance candidate, and Mr Odinga, the Azimio la Umoja One Kenya Coalition Party flag-bearer, could be locked out of the presidential race.

Among the legal battles at Mr Odinga’s doorstep are two separate constitutional petitions filed by presidential aspirant Ekuru Aukot and Thirdway Alliance chairman Miruru Waweru, while the other is by voters John Kenga and George Bush.

Dr Ruto, on his side, is facing four petitions lodged by politician Stanley Livondo, former nominated Senator Paul Njoroge, activist Okiya Omtatah and Mr Michael Kirungia.

In the petition filed by Dr Aukot and Mr Waweru against Mr Odinga’s candidacy, they claim the Orange Democratic Movement (ODM) leader is a public officer working as an adviser to the government pursuant to Section 8 of the Retirement Benefits (Deputy President and Designated State Officers) Act, 2015.

They argue that the role makes him ineligible to vie for an elective seat as he did not relinquish the position.

They argue that Mr Odinga is a beneficiary of funds allocated by the National Treasury to retired state officers retained as advisers to the government. Also sued in the constitutional petition are former vice-presidents Kalonzo Musyoka and Musalia Mudavadi. The latter is also a former deputy prime minister.

“By dint of the said Act of Parliament, the respondents (Mr Odinga, Mr Musyoka and Mr Mudavadi) are public officers as their benefits are drawn from the consolidated fund as allocated by Parliament for their roles as advisers to the government," the petitioners say.

Mr Odinga, they say, should have resigned, just like other public officers, from his advisory role before seeking any political seat.

The second case, by Mr Bush and Mr Kenga, seeks to lock out Mr Odinga on account of his January 2018 swearing-in as the “peoples’ president” at Uhuru Park in Nairobi.

The petitioners argue that the mock swearing-in amounts to treason and want Mr Odinga barred from vying for the presidency until he is cleared of the allegations. They are aggrieved that two other people who participated in the swearing-in ceremony, lawyers Tom Kajwang (Ruaraka MP) and exiled lawyer Miguna Miguna, were arrested and charged. The petitioners also want an order compelling the police and the Director of Public Prosecutions to bring criminal charges against Mr Odinga.

Dr Ruto is facing constitutional cases related to his current position in the government. Mr Livondo’s suit seeks to stop Dr Ruto from vying for President. Mr Livondo says several sections of the constitution imply that a deputy President and cabinet secretaries cannot vie for President in a subsequent General Election.

He argues that the duties and functions of the President are easily transferred to the deputy and the two serve as a single unit. By virtue of Article 148 (6) (A) of the constitution, he argues, a sitting deputy President who has served two consecutive full terms should be barred from standing for nomination as a presidential candidate.

He argues that, since the deputy President and cabinet secretaries are appointed by the President without going through nomination, they work together as a single unit and they should be curtailed by the legal provision that limits the President to two five-year terms.

As a result, Mr Livondo says, neither member of this unit can stand for nomination as a presidential candidate in subsequent elections after the President’s two five-year terms expire. In 2019, Jubilee vice chairman David Murathe declared he would fight to the Supreme Court in a bid to block Dr Ruto from vying for President.

“Nobody can be deputy President for more than two terms. Why does it [constitution] say that? Because another article also says nobody can be President for more than two terms. And if the President is not there, who becomes the President? His deputy,” said Mr Murathe then, citing the law on the roles of the deputy President and how they are elected.

Dr Ruto is facing another battle launched by Mr Kirungia. The petitioner claims the DP is ineligible because of an alleged crime he committed under the Oaths and Statutory Declaration Act. He alleges that the DP has absconded his duties and wants the court to restrain him from using his Karen office and his official residential home to hold political meetings. The petitioner says the DP has been doing “self-assigned” duties and functions other than those involving his oath of office.

“Being the principal assistant to the President, [Dr Ruto] has failed [in his duties],” Mr Kirungia says in court papers. In yet another case facing Dr Ruto, Mr Omtatah wants an interpretation of the law on the eligibility of Dr Ruto and other holders of elective positions vying for the presidency.

The activist wants the court to declare that a sitting President, deputy President, governor and deputy governor cannot be elected to any other elective positions other than the one they hold. Besides Dr Ruto, another presidential aspirant holding an elective position is Murang’a Governor Mwangi Wa Iria.

Mr Omtatah’s main contention is whether Section 43 of the Elections Act complies with Article 24(2)(a) of the constitution. That section of the Act is on the participation in elections by public officers. It exempts holders of elective political offices from the list of public officers who should resign to contest in an election.

Article 24(2)(a) of the constitution says a law enacted or amended limiting a fundamental freedom is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation. In Mr Njoroge’s petition, he wants the court to determine whether conducting the presidential election of August 9 will have reduced the five-year term of President Kenyatta and DP Ruto.

The former nominated senator , who represented persons with disabilities between 2013 and 2017, wants the General Election postponed so as to ensure that both the President and his deputy serve a full term.

Because President Kenyatta and his deputy were re-elected and sworn in on November 28, 2017, he argues, their five-year constitutional terms will not have lapsed by the date of the elections and their stay in office should be extended.

He says Mr Kenyatta and DP Ruto’s constitutional terms lapse on November 28. Dr Ruto is also facing a separate case that may disrupt his campaign and political messaging. The case by Jacob Kioko involves the copyright of the DP’s economic slogan “Bottom-Up”.

Mr Kioko, a professional marketer, filed the case last November and claims the “bottom-up” economic model is his innovation and intellectual property. He registered it as a patent in March 2010 and was issued with a certificate three years later, in May 2013. 

He claims that he shared the idea of the proposed economic model with the offices of the President and deputy President in 2014 but efforts to get an audience with either President Uhuru Kenyatta or Dr Ruto were unsuccessful.

The cases are considered urgent as the electoral commission is about to begin clearing candidates to vie in the August 9 General Election.