Activists Court Case Seeks New Path To Remove The President From Office In Kenya
Members of the Kenya Bora Tuitakayo Citizens Union and several other activists recently filed a lawsuit at the Milimani High Court seeking to remove President Willian Ruto and Deputy President Rigathi Gachagua from office. They accuse them of violating the Constitution, incompetence, and of losing the public’s trust. The Petitioners list several grievances, including oppressive taxation, extrajudicial killings, secret deals with the United States, manipulating the Parliament, ethnic discrimination in appointments and general misuse of power.
In their Court filing, the petitioners are requesting the High Court to compel the Independent Electoral and Boundaries Commission (IEBC) to conduct a referendum that will allow the people to decide through a popular vote whether or not the tenure of the President and the Deputy President should be terminated based on these alleged failures.
However, the 2010 Constitution does not provide a mechanism for removing the President through a popular vote. The only recognised methods for vacating the Presidency are through death, resignation or impeachment, and this follows a specific Constitutional Process. The Petitioners are actually seeking to establish a new method for removing the President from office. The Petition is requesting the Court to interpret or expand the Constitutional provisions regarding the sovereignty of the people (Article 1 of the Constitution) to allow for the direct removal of elected officials through a popular vote.
Article 1 of the Constitution deals with the sovereignty of the people and the supremacy of the Constitution. The following are the key provisions the might support the petitioners case:
- Article 1(1) states: “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution”.
- Article 1(2) states: “The people may exercise their sovereign power either directly or through their democratically elected representatives”
- Article 1(3)(c) specifies that the sovereign power of the people is delegated to “the Judiciary and Independent Tribunals.”
Based on those provisions in the Kenyan Constitution, the Petitioners seem to be arguing that:
- Since sovereign power belongs to the people, they should have the right to recall their elected representatives, including the President.
- The phrase “exercise their sovereign power either directly or through their democratically elected representatives” could be interpreted to mean that people can directly decide on matters of governance, including removal of officials, through mechanisms like referendums.
- That the court, as part of the Judiciary mentioned in 1(3)(c), has the power to interpret and expand on how people can exercise their sovereign power.
As stated before, the Kenyan Constitution already prescribes methods for removing the President. The Petitioners believe that those methods are no longer viable. The main reasons are:
- Loss of Trust in Parliament: The Petitioners believe that Parliament is being controlled and intimidated by the Executive Branch and can no longer be trusted to impartially impeach the President. They argue that Parliament is no longer functioning as an effective watchdog over the Executive.
- Urgency of Action: The Petitioners express concern that the political landscape is facing deterioration, which can cause severe instability. They argue that immediate action is needed to prevent a state collapse.
- Lack of Faith in Government: The Petitioners argue that a lack of good faith in dealing with the people’s grievances has diminished the legitimacy of the Kenyan Presidency. They see a referendum as the only way to restore accountability to the leadership.
The Court is essentially being asked to interpret Article (1) of the Constitution in a novel and expansive way. This broad reading of the sovereignty clause could be seen as a way of attempting to amend the Constitution through Judicial interpretation. The Petitioners want the proposed referendum to be done by the end of October 2024 so the country won’t have to wait for long to find out how the High Court decides to handle this potentially historic petition.