He contends that the court is being invited to enter the arena of legislation that constitutionally belongs to Parliament/FILE
In a preliminary objection filed in court, Githu Muigai says the case should be thrown out since it is in conflict with the constitutional provision of presumption of innocence before a trial.
In his grounds opposing the case, he argues that the petition is based on speculation and conjecture.
He contends that the court is being invited to enter the arena of legislation that constitutionally belongs to Parliament.
“The petition is misconceived based on total misrepresentation and misapplication of the Constitution of Kenya and the legal process at the International Criminal Court,” Muigai said in court papers.
The AG’s position was also supported by Kenyatta who argues the court has no authority to entertain the case as Parliament is yet to legislate rules and procedure of effecting Chapter Six of the Constitution which deals with integrity of occupants of public offices.
Kenyatta who is also a deputy Prime Minister argues that the case is premature because he has not been nominated to run for any elective post.
The case had been filed by a civil society organisation, which had sought to know whether the two suspects met the requirements of Chapter Six of the Constitution of leadership and integrity.
The court at the same time also allowed the petitioners to include three prominent Kenyans seeking high elective posts in the case.
Lawyer Ambrose Weda acting for five of the applicants told High Court Judge Isaac Lenaola that he did not want to disclose the names until they are named in the new suit.
He however promised to enjoin the three as respondents alongside Kenyatta and Ruto.
“We want the issue of integrity dealt with once and for all,” he said.
The petition was filed by eight civil society applicants who want the court to block Kenyatta and Ruto from contesting the presidency since they have been indicted at the International Criminal Court over crimes arising from the post-election violence in Kenya.
The case was set for hearing on Tuesday by three High Court judges but it was deferred because two of them were indisposed.
The court also allowed the National Alliance Party (TNA) whose presidential candidate is Kenyatta to join the suit. The Law Society of Kenya also made an application through its chairman Eric Mutua to join the proceedings.
Kenyatta and Ruto have said they will run for the presidency despite facing charges at the International Criminal Court.
Chief Justice Willy Mutunga earlier announced that only the Kenyan courts can decide whether Kenyatta and Ruto who are facing charges of crimes against humanity can run for elective offices.
The chairman of the Independent Electoral and Boundaries Commission Isaack Hassan on his part said it was up to the Ethics and Anti-Corruption Commission to decide if the names of the two should be on the ballot as presidential candidates.
However, there have been different opinions on their eligibility to run for the top office. Justice, National Cohesion and Constitutional Affairs Minister Eugene Wamalwa and many other politicians have said that the two are free to run since the court had not decided their fate.
On the other hand, civil society groups have been opposed to their running, arguing that they first have to be cleared by the ICC before running for the presidency.
The two alongside radio presenter Joshua arap Sang and former Head of Civil Service Francis Muthaura are set to begin their trials in April next year at The Hague-based court.
Kenyatta is accused of five counts of crimes against humanity that include murder, rape, and other sexual offences, transfer of populations and persecution while Ruto faces three counts of crimes against humanity following the 2008 post election violence.
The ICC has indicated that it is not interested in the Kenyan politics and has instead urged them to elect leaders of their choice.
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