The High Court has declared unconstitutional a law restricting retired presidents from engaging in active politics.
Justice Bahati Mwamuye ruled on Monday, September 21, that once a president leaves office, they cease to exercise the executive authority of the State and become a private citizen.
The judge said a former president cannot be forced to surrender constitutional political rights simply because they previously occupied the country’s highest office.
“The person thereafter stands in a fundamentally different constitutional position: he or she is a private citizen,” Justice Mwamuye said.
The court specifically struck down Section 6 of the Presidential Retirement Benefits Act, which barred a retired president from holding a position in a political party after six months from leaving office.
Justice Mwamuye said the restriction was inconsistent with Article 38 of the Constitution, which protects the right of citizens to participate in political activities.
“The effect is coercive and has the potential to chill political participation,” the judge ruled.
The decision comes amid a dispute over the political activities of former President Uhuru Kenyatta, with some leaders pushing for his retirement benefits to be reviewed over his continued involvement in Jubilee Party affairs.
The court also declared Sections 4(1), 4(2) and 4(3) of the Act unconstitutional, meaning the provisions cannot be used to withdraw, reduce or disadvantageously vary retirement benefits protected for a former president.
Justice Mwamuye held that Article 151(3) of the Constitution protects the retirement benefits and privileges of a former president from being varied to their disadvantage during their lifetime.
He further found that accrued retirement benefits are protected property rights and cannot be taken away without complying with constitutional safeguards.
The ruling comes just days after Justice Lawrence Mugambi delivered a different judgment on September 14, holding that retired presidents could participate in political activities but could not hold political party leadership positions beyond six months after leaving office.
Justice Mwamuye’s decision therefore creates a significant legal contrast over the extent to which former presidents can remain involved in active politics.
However, the court did not quash a May 4, 2026 parliamentary motion concerning the retirement benefits of a former president.
Justice Mwamuye said the motion had not resulted in a final decision that could be quashed by the court.
The judge instead barred State organs from relying on the invalidated provisions to withdraw, reduce or otherwise disadvantage a former president’s constitutionally protected retirement benefits.
