, NAIROBI, Kenya, Feb 6 – The case challenging the eligibility of Jubilee presidential candidate Uhuru Kenyatta and his running mate William Ruto in the March 4 election will be determined on February 15 by a five-judge bench.
In their final submissions, lawyers for the two politicians said the High Court had no legal authority to determine presidential election disputes since that is the mandate of the Supreme Court.
Through their lawyers Evans Monari (for Kenyatta) and Katwa Kigen for Ruto, they submitted that disputes on the nomination of the duo as presidential candidate and running mate respectively should have first have been filed before the Independent Electoral and Boundaries and Commission (IEBC).
The Attorney General and the IEBC concurred with that line of argument, and asked the judges to dismiss the case saying the High Court had no jurisdiction to deal with presidential election disputes.
The two also argued that the matter before the court was purely speculative “because it is not outright that Kenyatta and Ruto will be elected in next month’s poll.”
On his part, the AG argued that the Ethics and Anti Corruption Commission was the sole institution that should first handle issues of leadership and integrity as mandated by the law.
Monari urged the court to dismiss the case, because it is funded by organisations like the Open Society of the USA which has an interest in the matter.
“All the petitions have been filed by individuals and organisations that are interrelated and whose source of funding is primarily the Open Society of America and whose objective is to disrupt our democratic processes and whose objective is aimed at whipping the sentiments of the people of Kenya against a candidate or candidates. My submission is that these petitions should be dismissed in limine,” Monari argued.
In his submission, Monari said the issue of integrity should not arise because Kenyatta’s case in The Hague is bound to fail after the main witness implicating him was dropped from the ICC witness list after recanting his evidence.
He pointed to the fact that the star witness number IV – who linked him to the Mungiki sect before the Pre-Trial Chamber – had been dropped from the list of witnesses by the prosecution because of integrity queries.
“The particular witness number IV has been dropped. He has said that the evidence that he gave was a fraud and the embarrassment to the prosecution has led the prosecutor to drop that particular witness so even if you were to open that case to see whether there were integrity cases today there is no case against the third respondent that is capable of standing trial at the ICC,” he added.
The integrity case has been filed by four NGOs – the International Centre for Policy and Conflict (ICPC), the Kenya Human Rights Commission (KHRC), the International Commission of Jurists (ICJ), and the Kenya and Public Corruption, Ethics and Governance Watch.
Lawyer Kibe Mungai for The National Alliance (TNA) argued the case should be dismissed since the petitioners had used prejudicial terms that are not recognized by election laws, including words like suitability and eligibility. He argued that suitability and eligibility’ should not be used to bar anyone.
“This court is being asked to go outside the law based on arguments which is not recognised in the law,” he said.
“If the orders are allowed, it would not only be the grievance of William Ruto or Uhuru Kenyatta but that of millions of their supporters. And that would be in disregard of the public interest and doctrine of universal suffrage,” Mungai added.