Uhuru’s political genius in face of legal hurdles

Uhuru Kenyatta takes oath of office as president of the republic of Kenya for second term on November 28, at Kasarani stadium. [PHOTO: JOHN MUCHUCHA]

Ever since he joined politics, President Uhuru Kenyatta has had a trail of court cases but luckily he wins them.

Kenyatta first joined active politics when he was elected Kanu chairman of the Gatundu branch in 1997.

In 2002, his nomination as Kanu’s preferred presidential candidate sparked outcry from other interested contenders leading to a massive walk out from the party.

Three years later Kenyatta defeated Nicholas Biwott to become Kanu chairman after garnering 2,980 votes among party delegates against 622 votes. This marked the beginning of a legal battle.

The late Biwott dislodged Kenyatta from the position but the High Court in December 2006 reinstated him. The court later confirmed the President as the party leader stating that there was insufficient evidence to show he had joined another party.

Kenyatta had led Kanu in the referendum campaigns against the Draft Constitution in 2005 after teaming up with the Liberal Democratic Party led by Raila Odinga among others.

But perhaps his biggest legal battle was fighting charges of crimes against humanity at the International Criminal Court at The Hague.

The then ICC Prosecutor Luis Moreno Ocampo accused Kenyatta who was a PNU leader, of being an indirect co-perpetrator in the 2007-08 post-election violence that left 1,200 people dead and more than 600,000 displaced.

The charges were confirmed on January 23, 2012. Deputy President William Ruto who was then an ODM member was also charged in the ICC over the chaos.

Resigned as minister

Kenyatta resigned as Minister of Finance upon confirmation of the charges but they were dropped on March 13, 2015 for lack of evidence.

After he was elected the 4th president of Kenya in 2013, his victory was challenged in court.

Raila, who had vied for the presidency, disputed the poll outcome at the Supreme Court which however held that the election of Uhuru was valid as irregularities did not make a difference to the final outcome.

Kenyatta was sworn in as President on April 9, 2013 following the court’s ruling.

But even before he was elected as 4th President, he had faced another legal battle.

Isaac Aluochier filed a case in court in February arguing that Kenyatta and some presidential candidates should not have been nominated as they were constitutionally unqualified.

He argued that Kenyatta was a State officer when he was nominated by his party and should not have been cleared by IEBC. However, the High Court dismissed the case. Five months later, Mr Aluochier moved to court again to block him from holding the top job arguing that he was in office illegally.

He stated that prior to becoming President, between August 27, 2010 and April 2012, Kenyatta was Kanu chairman and continued to hold the position of Deputy Prime Minister right until he assumed office as President.

The petitioner argued that the Constitution prohibits an appointed State officer from holding office in a political party. The case was dismissed.

On November 20, The Supreme Court dismissed the petitions challenging the validity of the October 26 presidential election.

The judges found that the two separate petitions, of Harun Mwau and that of Khelef Khalifa and Njonjo Mwau, failed to prove that the poll was flawed to warrant a nullification.

The President has however lost some cases. The Supreme Court led by Chief Justice David Maraga nullified Uhuru’s win in the August 8 presidential election. Following the successful petition by Opposition leader Raila Odinga, the court ordered the fresh election but the National Super Alliance presidential candidate boycotted the poll that Kenyatta won by 7.4 million votes (98 per cent).

In February, 2015, the High Court ruled that sections of the Security Laws (amendment) Act 2014 were unconstitutional. The President had in December signed into law the controversial Security Bill after it had been passed in a chaotic Session of Parliament.

The opposition and other civil society organisations later opposed the law in Court. The new law had amended 22 other Acts of Parliament in matters to do with national security.

The five-Judge-bench nullified 8 clauses of the Act. They overturned the restrictions on media, as these were found to violate the freedom of expression and the freedom of the media as guaranteed in the Constitution. The court also nullified the sections touching on the right to a fair hearing. These would have given the prosecutor powers to withhold evidence and the power to frustrate someone trying to be released on bail.

In addition, the court found that the section which limited the number of asylum seekers and refugees allowed to stay in Kenya had violated the 1951 UN Convention in the Status of Refugees, which happens to be part of the laws of Kenya, as stipulated in the Constitution.

The High Court also suspended sections of the Parliamentary Powers and Privileges Act that blocked serving of court orders within the precincts of Parliament.

The court ordered that neither the National Assembly nor the Senate should attempt to enforce sections 3, 7 and 11 of the Parliamentary Powers and Privileges Act No. 29 of 2017 following a suit filed by former Law Society of Kenya Chief Executive Apollo Mboya. The disputed law was assented to by the President on July 21.