President William Ruto addressing the media on the retreat of the extended bureau on the implementation of the institutional reforms of the African Union at the State House Nairobi on Monday, January 27, 2025.
President William Ruto has asked the High Court to throw out a constitutional case lodged by rights' activists seeking his impeachment through a public referendum over alleged incompetence, abuse of power and gross violation of the Constitution.
The President's legal team led by Senior Counsel Fred Ngatia argued that the petition is fatally defective and should be rejected.
Mr Ngatia raised several other legal arguments, including the suing of the President in his personal capacity and the legality of the proposed mechanism for the removal of a President from office directly by the voters through a plebiscite.
Appearing before High Court judge Bahati Mwamuye, Mr Ngatia said the petition is seeking to usurp Constitutional powers reserved for the National Assembly on impeachment of the President.
"The proposed petition is fatally incompetent for joinder of the President contrary to Article 143(2) of the Constitution," said Mr Ngatia.
Senior Counsel Fred Ngatia making his submissions at the Supreme Court on September 1, 2022. Mr Ngatia was leading lawyers representing President-elect William Ruto in the presidential election petition.
The said provision of the Constitution states that civil proceedings cannot be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their Presidential powers.
The case filed by 13 rights activists and civil society group Kenya Bora Tuitakayo Citizens Association in August last year is asking for orders granting Kenyans an opportunity to determine whether President Ruto's five-year tenure could be cut short midterm.
The petitioners want court to issue an order directing the electoral commission to conduct a referendum to determine whether the tenure of the President could be terminated on account of alleged gross violation of the Constitution, loss of public trust and legitimacy, abuse of power and incompetent governance.
The petition further alleges that the President exercised his powers illegally under the Constitution by appointing State and public officials in an ethnically discriminatory manner.
'Uncharted waters'
However, according to lawyer Ngatia, the petitioners are "navigating in uncharted waters" and their bid should be thrown out.
"Removal of the President from office under the Constitution of Kenya can only be by way of impeachment and the removal is based on grounds of incapacity by Motion tabled by a member of the National Assembly as envisaged under Articles 144 and 145 of the Constitution," said Mr Ngatia.
"This court has no jurisdiction to hear or determine an issue exclusively reserved by the process set out in the said Articles".
He explained that by filing the petition in court and seeking declarations concerning the impeachment of the President, the activists are evading the Constitutional structure.
"There is a Constitutional structure on removal of the President from office. The petitioners are trying to avoid that structure. There are only two branches of law; criminal and civil. The law uses the words "shall not" in mandatory terms. When you have mandatory terms, the effect is clear," said Mr Ngatia.
In his push for dismissal of the case describing it as "a dangerous pass time", the President's lawyer said that when the Constitution defines parameters on how to impeach the President, the mechanism cannot be converted to an adversarial process.
On the petitioners' blame on President Ruto for the deployment of military officers to deal with anti-government protesters in June last year, Mr Ngatia said the issue was addressed in another petition pitting the Law Society of Kenya and the Attorney-General. Hence, he said it cannot be litigated again.
The petitioners claimed that there was no justification for the President to deploy the Kenya Defence Forces to prevent unarmed citizens from protesting and picketing against the government actions.
'Frequent law violations'
In their submissions, they claimed that since his coming to power in September 2022, the President has violated the Constitution 30 times.
Regarding a referendum to remove President Ruto, their lawyer Kibe Mungai told court that the Constitution allows people to exercise their sovereign power directly and that power includes kicking out a President from office.
"The petitioners are not seeking the removal of the President through a judicial process. We are instead asking the court to make a finding on the President that he has violated the constitution. It is the business of the court to declare that a person has violated the constitution," said Mr Mungai.
He explained that the case is about holding public office occupants to account.
On suing of the President in person against the immunity granted by the Constitution, the lawyer said that since the case concerns impeachment the petitioners could not have sued the Attorney-General as is the practice in other litigations.
According to Mr Kibe, the Attorney-General cannot represent the President in such a case.
The ruling is scheduled for May 22, 2025.
