, NAIROBI, Kenya, Mar 26 – The Katiba Institute and Prof Yash Pal Ghai on Tuesday faced stiff opposition from parties in the presidential petition as it applied to be joined as amicus curiae in Petition 4 which has been field by three voters.
Lawyers representing the voters, the Independent Electoral and Boundaries Commission (IEBC) and those acting for the President-elect Uhuru Kenyatta who had sought more time to look into the application and respond, insisted that the organisation was not an impartial player.
Lawyer Njoroge Regeru representing the three voters, Dennis Itumbi, Moses Kuria and Florence Sergon insisted that the institute had already adopted known positions to some of the parties in the petition particularly President- elect Kenyatta and his deputy William Ruto.
“From the foregoing, the Katiba Institute does not qualify as amicus as it does not wear the neutral face of an amicus; they already have a stated agenda and interests,” submitted Regeru.
Lawyer Kamau Karori appearing for the IEBC said that the institute had failed to disclose all its published articles, which he insisted communicated an attitude the institute had formed on the commission.
According to Karori, the former chairman of the Constitution Review of Kenya Commission Yash Pal Ghai had a personal issue with IEBC chairman Issack Hassan.
“The applicant is a person who should file his own complaint; there was a duty on the applicant to disclose the attitude he holds on any of the parties already before court,” Karori said adding that the institute had nothing new to present to the court.
Lawyers Fred Ngatia and Katwa Kigen appearing for Kenyatta and Ruto told the court that the Katiba Institute could not meet the test of impartiality following an article published late in 2012 talking of the implications of Kenyatta’s presidency with his indictment at the International Criminal Court (ICC).
“The principle applied in admitting amicus is based on impartiality and the scholarship that the amicus brings to the court. But, here is a case of deep seated resentment towards the third and fourth respondents,” Ngatia said.
“Their attitude towards the third and fourth respondents is emotional and vicious,” Kigen said.
Ghai however in his submissions maintained that he did not have any personal problems with Hassan, telling the court that he has had an amicable and fruitful relationship with the chairman.
“Issack Hassan and I are close friends, we respect each other. We have collaborated with the commission within the last two years in many instances,” Ghai said in response.
Ghai received support from Waikwa Wanyoike a director with the institute who told the court that matters of integrity and ICC were not before the court and that opinions expressed about them were irrelevant in the petition.
“The issue here is the validity or otherwise of the presidential election results and our opinion on ICC matters do not matter in this instance,” Wanyoike said.
The Supreme Court is expected to make a ruling on that matter on Tuesday afternoon.