The High Court has declared unconstitutional provisions of the law restricting retired presidents from holding political party office, ruling that leaving State House does not take away their constitutional political rights.
Justice Bahati Mwamuye delivered the judgment on Monday, September 21, saying a former president becomes a private citizen after leaving office and should not have their political life controlled simply because they previously held the presidency.
“The person thereafter stands in a fundamentally different constitutional position: he or she is a private citizen,” Justice Mwamuye said.
The ruling is significant for former President Uhuru Kenyatta, who has remained involved in political activities after leaving office.
The court also declared Sections 4(1), 4(2), 4(3) and the entirety of Section 6 of the Presidential Retirement Benefits Act unconstitutional, null and void. The provisions had been used to regulate the political activities of retired presidents and circumstances under which their retirement benefits could be withheld or reduced.
The judgment comes only a week after another High Court ruling concerning the same issue.
On September 14, Justice Lawrence Mugambi upheld Section 6 of the Presidential Retirement Benefits Act, which restricts a retired president from holding a political party leadership position for more than six months after leaving office.
However, Mugambi’s ruling did not prevent retired presidents from belonging to political parties or participating in political activities.
Following that ruling, Uhuru said he would hand over his leadership position in the Jubilee Party.
His office said the decision was not a restriction on his political life but an affirmation of Kenya’s democratic institutions.
Monday’s judgment by Justice Mwamuye now takes a different position on the restrictions, holding that a former president remains a citizen with constitutional rights after leaving office.
The judge noted that a president’s executive and coercive powers end when their constitutional term comes to an end.
“The office of President is held for a constitutionally defined period. Upon cessation of office, the former President ceases to exercise the coercive and executive authority of the State,” Mwamuye said.
The case comes against the backdrop of political debate over Uhuru’s continued involvement in politics, with some leaders allied to the government having accused the former president of being actively involved in opposition politics.
The latest ruling means the law cannot be relied on to restrict a retired president’s political participation in the manner challenged before the court. It also affects the provisions that allowed retirement benefits to be withheld or reduced under certain circumstances.
