President William Ruto and his deputy Rigathi Gachagua want a petition calling for a referendum to determine whether they should remain in office dismissed, arguing that the petitioners are agitating for the amendment to the Constitution disguised as a petition.
While urging the High Court to dismiss the case, President Ruto and Mr Gachagua further said the 14 activists and lawyers have failed to demonstrate with precision the alleged violations, the particulars of the alleged complaints or the manner of the alleged infringements.
The petitioners, including lawyers and civil society activists, allege that there is an obvious need to call a referendum to afford Kenyans an opportunity to determine the fitness of the current government to remain in office.
Through senior counsel Fred Ngatia, Dr Ruto and Mr Gachagua urged the court to strike out the case stating that they have been improperly joined as party in the case.
“Whereas the petitioners have raised issues regarding policy decisions of the Executive arm of government, among them tax and economic policies as well as agreements between the government and IMF, it has not demonstrated the manner in which the policy decisions have violated the Constitution and the nature of injury caused by the policy decisions to the petitioners,” Mr Ngatia said.
High Court Judge Bahati Mwamuye directed the parties to file their submissions, which will be highlighted on October 29.
The petitioners, including Cyprian Nyamwamu, Khalif Khelef, Janet Muthoni Ouko, Paul Rukaria and Esther Mwikali, argue that the rapidly diminishing capacity of the government to address the challenges facing Kenyans and the attendant diminishing legitimacy of the Kenyan presidency to steward the affairs of the Kenyan State and nation, calls for a referendum.
“The legitimacy crisis facing Kenya is so profound that the Petitioners contend and seek to have the tenure of the 1st and 2nd respondents- as President and Deputy President- terminated through a popular vote in a Referendum that should be held by the end of October, 2024,” the petition stated.
Mr Ngatia, however, submitted that the court is called upon to determine hypothetical matters and engage in determination which are academic and/or illusory.
“The petitioners have not demonstrated a real controversy or dispute before the court in order for it to exercise jurisdiction under Article 165(3) of the Constitution,” he said.
He added that the mandate of removal of the President and the deputy president from office has been constitutionally entrusted to the legislature.
Mr Ngatia wants the court to strike out the petition further questioning the source of the documents, saying the authenticity of its content is doubtful.
He said there is real likelihood that the documents may not be genuine or may have been made for the purpose of the case.
Through lawyer Kibe Mungai, the petitioners allege that as a result of the multiple deficiencies of the President and his deputy, the country has experienced widespread, incessant and passionate public protests against bad governance led by Generation Z (Gen Z) demanding a re-orientation of governance in Kenya and re-establishment of government.
They have questioned the capacity of the government during periods of socio-economic and political crises and the diminishing legitimacy of the current government to uphold the constitutional order without resorting to military and state-sponsored low-level terrorism.
“This petition seeks judicial intervention to prevent the current socio-econo-political crisis from spiraling out of control and to preserve the constitutional order,” Mr Nyamwamu said in a statement.
