Five-judge bench to determine Uhuru, Ruto eligibility

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Five-judge bench to determine Uhuru, Ruto eligibility



By PAUL OGEMBA pogemba@ke.nationmedia.com
Posted Tuesday, January 29 2013 at 14:40

In Summary

  • Justices Mbogholi Msagha, Luka Kimaru, George Kimondo, Pauline Nyamweya and Hellen Omondi handed task of determining the integrity of Mr Kenyatta and Mr Ruto.
  • The two are facing charges of crimes against humanity at the International Criminal Court.
  • Hearing is scheduled for February 6.


    The fate of Jubilee presidential candidate Uhuru Kenyatta and his running mate William Ruto to contest in the General Election is in the hands of five High Court judges.

    Justices Mbogholi Msagha, Luka Kimaru, George Kimondo, Pauline Nyamweya and Hellen Omondi were handed the task of determining the integrity of the two to contest the county's top leadership despite facing charges of crimes against humanity at the International Criminal Court.

    The judges cleared Coalition for Reforms and Democracy (Cord) presidential candidate Raila Odinga and his United Democratic Forum (UDF) counterpart Musalia Mudavadi after their names were struck off the petition.

    And to show the seriousness and urgency the judges want to determine the petitions, they directed all parties to file their submissions by Friday failure to which they will be struck out and assumed to have withdrawn their interest in the proceedings.

    "Time is of essence and we will only allow highlighting of the written submissions. We will only have a one-day hearing on February 6 so parties must ensure they put all their documents together," said Judge Msagha.

    The judges allowed a request by The National Alliance (TNA) to give it time to allow Mr Kenyatta present his nomination papers to the IEBC before filing a response.

    Mr Odinga, his running mate Kalonzo Musyoka and Mr Mudavadi's names were struck off after the petitioner who challenged their integrity said he was unable to serve them with the suit papers and was no longer interested in having them defend themselves in the case.

    The Public Corruption, Ethics and Governance Watch lobby group and activist Charles Mwangi sought to bar Mr Odinga, Mr Musyoka and Mr Mudavadi from seeking public office on claims that their candidature contravened Chapter Six of the Constitution on leadership and integrity.

    The lobby wanted Mr Odinga barred over allegations of fraudulently acquiring his post-graduate degree in Germany, being involved in events that caused the 2007/08 post-election violence and the attempted military coup of 1982.

    Against Mr Musyoka, they alleged he used his office to acquire radio frequencies for a company owned by his wife and for authorising the sale of the Somali embassy in Nairobi while Mr Mudavadi was accused of lying about his role in the Goldenberg scandal and for grabbing land owned by the City Council of Nairobi.

    The five-judge bench will now determine the petitions by the International Centre for Policy and Conflict, Kenya Human Rights Commission, and International Centre for Jurists over the suitability of Mr Kenyatta and Mr Ruto.

    The lobbyists wants the two barred from contesting arguing that Mr Kenyatta and Mr Ruto presence at The Hague to attend trial would hinder them from discharging their duties effectively and want IEBC barred from accepting the candidature of any person facing a criminal case whose sentence is at least six months.

    They are also seeking a court declaration that the candidature of Mr Kenyatta and Mr Ruto despite facing charges of crimes against humanity at the International Criminal Court (ICC) is a threat to the Constitution and a perpetuation of a culture of impunity.

    According to the groups, a leader is contemplated to be someone who carries dignity, legitimacy and has the people's trust and confidence and that electing any person committed to trial would bring dishonour to the office and seriously affect the person's ability to discharge his duties.

    The hearing is scheduled for February 6.

    Five-judge bench to determine Uhuru, Ruto eligibility - CAMPAIGN NEWS - elections.nation.co.ke
 
One fundamental question: Who appointed the five judges to implement the exercise?
 
Keen said:
One fundamental question: Who appointed the five judges to implement the exercise?
Click to expand...

The appointing authority or if you like the judiciary did the appointing as described in the new constitution.! Could they have appointed themselves
 
Let them finish ICC business first! they still young, kama ipo ipo tu!
 
anything can happen with UK and Ruto, i keep my fingers crossed! Of recent Peter Kenneth is gaining ground (see Gado polls) and I am pretty sure he will be a beneficiary if the court panel bars UK and Ruto from vying for the higher office!
 
Just months ago we had a truth justice and reconciliation commission to be run by judges from the judicial system set to conduct and indict those involved in "past injustices" like the wagalla massacre.

This bench is now acquitting those that were involved in past coup de tats and allegations of corruption as petitioned by lobby-groups probably because they did not provide evidence alongside the petition! The Kenyan courts systems though reformed can't be forced to issue a ruling on a case yet to be conducted and decided by the ICC!
 

Kabaridi Kenyan election law is loud and clear ........one is crystal clean till convicted by court of law and all avenues of reprieve have been fully exhausted............so this case despite stirring a lot of vain dust it is speculative and presumptuous and will be dismissed as such.................
 

These petitions are politically motivated and those behind them are working on orders of the politicians, whether such orders will help them win the election is for us to wait and see. but they need to spend more energy planning strategically with their campaign team and support base on the ground to forge a winning formula. We have seen it being applied against Waititu and Sonko by a relative to a prominent politician but it failed. Using the court system as an aid to their campains is quite illogical and will not work.
 

Kabaridi I just can't wait to see tears of crocodile that amollo will shed..........
 

Do not cheat yourself. These guys already have a case to answer. Even Kahn without a court ascertaining that he actually do'ed the hotel room girl was unable to run for france president. Already the entire developed world is saying that if these guys win Kenya will face sanctions for sure and Kenyans want to say that everyone - the whole world- is mad to refuse these guys.
 
Uhuru and Ruto face anxious wait





By BERNARD NAMUNANE bnamunane@ke.nationmedia.com
AND PAUL OGEMBA pogemba@ke.nationmedia.com

Posted Wednesday, February 6 2013 at 20:47

In Summary


  • At the end of next week Jubilee coalition presidential election pair will know from the Kenya High Court whether they are eligible to vie for office; while The Hague makes decisions on their trial for crimes against humanity on Thursday next week.


Presidential candidate Uhuru Kenyatta and his running mate William Ruto face an anxious nine days as they await decisions on whether they will be on the ballot and a timetable for their trials at The Hague.


On Thursday next week, the Jubilee alliance leaders will know the schedule of the cases facing them at the International Criminal Court.

And on Friday next week, the Kenyan High Court will decide on their eligibility to vie for public office.

Mr Kenyatta and Mr Ruto have asked the ICC Trial Chamber to alternate the hearings of their cases to make it possible for them to govern the country without interruption should they win the March 4 elections.

Mr Ruto will be the first in the dock at The Hague on April 10, with Mr Kenyatta's case starting the following day.

They are accused alongside former Kass FM radio journalist Joshua Sang and former public service head Francis Muthaura.

On Wednesday, their defence teams were busy grappling with ICC judges' decision to order them to attend the status conference either in person or through a video link on February 14 to lay the ground on how the trial proceedings will be conducted.

Lawyer Kindiki Kithure representing Mr Ruto said their client was likely to opt for the video link since he was deeply involved in the campaigns.

"For us, we will see the best way forward. We will see which is the most appropriate option to meet the demands of the court now that they have given the possibility of the video link. Because we are in campaigns, we might resort to a video link instead of going to spend three days at The Hague," Prof Kithure said on phone.

Mr Karim Khan, who is the lead lawyer for Mr Muthaura, was cautious on whether his client will fly to The Hague.

"I cannot tell you what I will advise my client to do. I am filing with the court now and if the document is made public, you will get more information," he said.

However, sources close to the legal team indicated that Mr Muthaura will attend the status conference in person.

In Nairobi, a five-judge bench on Wednesday heard submissions from lawyers for Mr Kenyatta and Mr Ruto in a case questioning their suitability to contest the presidency and set the ruling date on February 15.

Their lawyers put up a spirited fight to have the case filed by Kenya Human Rights Commission (KHRC), International Commission of Jurists (ICJ) and International Centre for Policy and Conflict (ICPC) dismissed.

They challenged the High Court jurisdiction to determine their suitability to vie for leadership despite facing criminal charges at the ICC, arguing that the civil society organisations were misusing the courts at the behest of foreign interests.

However, their attempts to have the case adjourned to seek more evidence to defend themselves was dismissed with the five-judge bench allowing the hearings to proceed.

The Attorney-General, through state counsel Stella Munyi, supported Mr Kenyatta and Mr Ruto's submissions to have the cases dismissed, arguing that the court should not be called to decide on hypothetical issues.

Ordered to attend

At the ICC, Trial Chamber judges Kuniko Ozaki, Christine Van den Wyngaert and Chile Eboe-Osuji ordered the four suspects to attend the status conference.

The conference will discuss the terms issued to the suspects by the Pre-Trial Chamber when it confirmed charges of crimes against humanity brought against them by then ICC Prosecutor Louis Moreno-Ocampo.

The charges stem from the 2007/2008 post-election violence in which at least 1,133 people were killed and more than 650,000 displaced from their homes.

"The main purpose of the status conference is to discuss the conditions of the summonses to appear issued by the Pre-Trial Chamber, as well as to address any practical, financial and/or legal matters related to the attendance of the accused at trial, including the modalities of the accused's stay on the territory of the host State during the trial," the judges said.

This means that the conditions surrounding the free bond which the suspects were handed by the Pre-Trial Chamber will come into focus.

While delivering the ruling of the Pre-Trial Chamber, judge Ekaterina Trendafilova cautioned the suspects against interfering with witnesses, mobilising their communities in a manner that could lead to violence; freely holding meetings between them, and inciting the public. (READ: Muthaura accuses ICC prosecutor of leaking witness details)

Still, the conference will agree on the length of the proceedings and any breaks that defence teams of Mr Kenyatta and Mr Ruto have proposed.

Uhuru and Ruto face anxious wait - CAMPAIGN NEWS - elections.nation.co.ke
 
Uhuru, Ruto integrity case ruling due next week


By WAHOME THUKU

Nairobi, Kenya: Eyes will be on the Judiciary as it delivers a historic ruling in the next one week over whether or not Jubilee presidential candidate Uhuru Kenyatta and his running mate William Ruto can vie for the March 4 General Election.

This follows the conclusion of a case challenging their eligibility to contest the presidency in line with Chapter Six of the Constitution on Leadership and Integrity following their expected arraignment before the International Criminal Court on, among other charges, crimes against humanity.

In their decision, the judges will certainly be keen not to make pronouncements that could affect the cases pending before the ICC.

The judges could go by the International Centre for Policy and Conflict's position and hold that the petition is not about the candidature of Uhuru and Ruto, but about whether or not anyone else facing such charges can hold a State office when facing such charges.

They may then decide that a person facing heinous criminal charges cannot hold a State office, in which case the IEBC would have to go by that determination and revoke Uhuru and Ruto's nomination for the Jubilee ticket.

Alternatively, the court may decide that the case is a dispute over the candidature of the two politicians, and hence they have no jurisdiction to determine the case.

In that scenario, the petitioners would be at liberty to take the case directly to the Supreme Court.

Still, the court could decide that it cannot rule on the integrity of the candidates for the time being, as the matter was pending before the ICC. They would then hold back from issuing any orders that may affect the cases.

With such a ruling, the candidates would remain on the ballot but the question of their integrity would still be open to debate and future determination.

Want suit dismissed

When the case concluded Wednesday, both Uhuru and Ruto urged the High Court to dismiss the suit and allow Kenyans to decide whether or not they should lead the country in the March 4 General Elections.

Uhuru also used new developments in the ICC to seek the dismissal of the Kenyan case.

He singled out the rejection of a prime witness number four by the ICC prosecution, as a basis to argue that there was no evidence that could be used against him in the two cases.

In their final submissions before a five-judge Bench, the two politicians said the High Court had no authority to determine presidential election disputes as it was the Supreme Court's mandate.

The Independent Electoral and Boundaries Commission (IEBC) and the Attorney-General, who submitted that the petitions were in the wrong forum, echoed the sentiments.

They submitted that disputes on the nomination of Uhuru and Ruto as presidential candidate and running mate respectively should have first been filed before the IEBC.

The cases have been filed by four NGOs – the ICPC, Kenya Human Rights Commission, the International Commission of Jurists (ICJ) Kenya and Public Corruption, Ethics and Governance Watch.

They are seeking a declaration that Uhuru and Ruto's candidature is contrary to the spirit of Chapter Six of the Constitution and that they should be barred from contesting.

Uhuru's lawyer Evans Monari argued that the star witness number four who linked the Deputy Prime Minister to the Mungiki sect before the Pre-Trial Chamber of the ICC had been dropped from the list of witnesses by the prosecution because of integrity issues.

This was the witness whose evidence the Chamber heavily relied on to confirm the charges against Uhuru.

"The whole of the ICC case against Uhuru is built around the evidence of witness number four which was adduced before the Waki Commission, the Kenyan National Commission on Human Rights and the Pre-Trial Chamber.

Monari said if the High Court decided to determine the question of integrity, it would be obstructed by the fact that the ICC prosecution has rejected witness number four.

"Even if you open that case and see if it has an integrity issue, you will find nothing to make him stand trial.

He said the petitions had been filed by NGOs funded by the Open Society of America with an objective of disrupting democracy and whipping up Kenyans' emotions against the candidates.

Lawyers argued that Parliament had passed several laws and established bodies such as the Ethics and Anti-Corruption Commission to determine issues of integrity.

"Where bodies have been specifically mandates to handle issues, they should be left to do so and the courts should not usurp their mandate," said lawyer Nani Mungai, for the IEBC.

He said the High Court could not go against a Supreme Court decision that it had exclusive authority to deal with presidential election disputes, including nominations.

Usurp powers

He said the High Court's jurisdiction was limited to reviewing the decisions of the IEBC on nominations and should not usurp powers granted to other bodies.

Ruto's lawyer Katwa Kigen appealed to the court not to take away people's rights to decide who becomes their leader.

"You should restrain yourselves from being the ones to determine the leadership of the country and leave it to the electorate," he submitted.

Mr Kibe Mungai, for TNA, said the words ‘eligibility' and ‘suitability' as used by the petitioners are not defined in the Constitution and should not be the basis for determination of the case.

He said there was no dispute filed before the IEBC challenging Uhuru and Ruto's nomination by the Jubilee alliance.

He said the orders sought would affect millions of Kenyans who are members of TNA and support the Jubilee candidates, and would be denied their right to participate in meaningful elections.

Mungai said the ICC could only deal with a matter if a Kenyan court under the doctrine of complementarity is not dealing it with, hence the Kenyan courts should respect the position if a case is before the ICC.

He told the court that presidential candidature issues belonged to political forums and the people should resolve disputes.

But lawyer Lempaa Suyianka, for the petitioners, argued that Article 140 of the Constitution only mandated the Supreme Court to deal with petitions against a presidential elect.

"Our petition is not about presidential election but state offices. Those seeking those offices must be taken through the test of integrity as demanded by the rule of law," he said.

Ruto and Uhuru's trials begin on April 10 and 11 at The Hague.

Uhuru is charged with the former Head of Public Service Francis Muthaura, while Ruto is charged with radio journalist Joshua arap Sang.

Earlier, the five judges hearing the case rejected an application to adjourn the hearing to enable Uhuru to produce the ICC proceedings. The judges will give a ruling on Friday next week.

Standard Digital News - Kenya : Kenya : Uhuru, Ruto integrity case ruling due next week
 
If verdict goes against the two they still can appeal to the supreme court. Ngoma bado.
 

The envoys and diplomats have re-asserted their stance, that whoever wins the forthcoming elections must cooperate with the ICC, wasn't that possibilty of election outcome be left to the KENYAN TO DECIDE!!! What is the difficulty in complying with such a plea?
 
Ruling live on citizen tv. Uhuru Ruto wamevuka salama- high court has no jurisdiction to hear eligibility case.
 
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