A petition has been filed at the Supreme Court challenging the qualification of presidential candidates Raila Odinga, Uhuru Kenyatta, Musalia Mudavadi, Peter Kenneth as well as running mates Kalonzo Musyoka and William Ruto to gun for the top seats.
Apparently the case has been lying silent at the Supreme Court registry since February 5, this year even as the High Court was grappling with four other similar petitions filed by NGOs and which were thrown out last Friday.
The Supreme Court petition has been filed by a voter Mr Isaac Aluochier who contends that the top presidential candidates should not have been nominated to vie for the seats as they were constitutionally unqualified.
His petition has drawn the interest of one of the NGOs, International Center for Policy and Conflict (ICPC) who were petitioners in the High Court suits.
The ICPC is now seeking to be enjoined in the case so as to challenge the candidature of Uhuru and Ruto on the ground of their pending trial at the International Criminal Court (ICC).
“Mr Aluochier has raised one set of issues as the basis upon which these candidates should not be on the ballot. We want to be enjoined so that we can add in the questions of integrity based on the ICC cases and have the court determine the issues in totality,” said the ICPC executive director Ndungu Wainaina.
The petition by Mr Aluochier, a voter in Migori, is anchored on the argument that Raila, Uhuru, Mudavadi and Kenneth were already State officers when they were nominated by their respective parties hence should not have been cleared by the Independent Electoral and Boundaries Commission (IEBC).
The four still hold the state office of Prime Minister, Deputy Prime Ministers and Planning Assistant Minister respectively.
Article 137(2)(b) of the constitution states that a person is not qualified for nomination as a presidential candidate if the person is a state officer or is acting as one. The constitution only excludes the President, Deputy President and MPs from this condition meaning a holder of those officers can still run for the Presidency.
Mr Aluochier, a UK trained Quantity Surveyor claims the constitution does not exempt holders of other State officer such as that of the Prime Ministers, DPMs or ministers.
“As long as you are holding one of those officers you must first resign before seeking nominations to become president,” he says.
He further argues the four cannot argue that they were MPs because by the time of their nominations, parliament’s term had already ended.
The petitioner says Kalonzo and Ruto violated Chapter Six of the constitution by holding State offices as MPs when they were officials of their political parties. As such they were disqualified being elected MPs which is a requirement for one to qualify to become president or deputy president.
The petition does not deal with integrity issues like criminal charges raised in the petitions handed by the High Court.
The Supreme Court has already ruled that it has the exclusive to hear and determine disputes arising from nominations of presidential candidates.
Last week the High Court threw out four petitions challenging the candidacy of Uhuru the jubilee alliance candidate and Ruto his running mate on integrity grounds.
Three judges ruled that only the Supreme Court has the jurisdiction to hear and determine petitions challenging the nomination of a presidential candidate and running mate as well as those challenging their elections.
Mr Aluochier argues that under the Elections Act a political party nominates unqualified candidate it commits an offence and shall be disqualified from nominating another candidates. He says the constitution requires the IEBC to perform its functions constitutionally in accordance with the electoral law.
“The IEBC and the commissioner breached their official duty in failing to ensure compliance with the constitution in the nominations,” he says.
Luckily, Mr Aluochier filed the petition just before the Supreme Court gazette presidential election petition rules set among other conditions that a petitioner must deposit Sh1 million in court as security.
The new rules also require a petitioner to pay more than Sh500,000 as court fees hence blocking many of those who can’t afford the money.
He has named Raila, Uhuru, Mudavadi, Kalonzo, Ruto, Kenneth as well as their respective political parties and all the commissioners of the IEBC as respondents.
He wants the Supreme Court to invalidate the entire nomination of the candidate, and declare that fresh process be carried out.
He is also asking that the March 4, elections cancelled and others scheduled within 60 days from that date, to allow for the fresh process.
But the petitioner says since he filed the case he has been pressing the Supreme Court to set a hearing date in vain.
On Friday, he was informed by the Registrar of the court that the matter had been taken before a conference of the judges to decide on its fate.
“It was the second case to be filed and I was told that it would be heard expeditiously since the Supreme Court is not busy,” he lamented “I think they want to wait until after the elections are held so that they can ask me to file a post-election petition and be subjected to all the stringent rules,” he said on Monday.
He wrote to the Chief Justice complaining about the delay in setting a hearing date. He said he had served all the parties electronically and though registered mail as required under the court rules.