Why bid to block Uhuru pension could be unconstitutional

The attempt to deprive retired President Uhuru Kenyatta his retirement perks is unachievable according to political leaders and lawyers.

The leaders argue that Uhuru’s retirement benefits, which also accrue to his family, are provided for in the constitution and can not be limited via an act of parliament.

It’s only through a referendum that such perks that include salary and allowances, security for his city and rural homes, bodyguards and domestic staffs can be withdrawn.

According to lawyers, a retired President’s political rights can not be limited as they are guaranteed under Article 38 of the constitution while Article 151 of the supreme law grants hm lifetime benefits that can not be varied to his disadvantage.

Last week, Nandi Senator Samsom Cherarkey tabled a motion in the Senate seeking to withdrew Uhuru’s retirement benefits on grounds that he had violated section 6 (1) of the Retired Presidential Benefits Act by engaging in politics.

This is after the former president addressed a public event via a phone call on May 1, endorsing his former Interior Cabinet Secretary Dr. Fred Matiang’i as his preferred presidential candidate.

“That law is misplaced. You can not limit rights of individuals through an act of parliament yet they are guaranteed in the Constitution. I thought Cherarkey is a lawyer who out to understand this simple logic,” former National Assmebly Speaker who also served as the country’s Attorney General Justin Muturi says.

Article 38 (1) provides; “Every citizen is free to make political choices, which includes the right-(a) to form, or participate in forming, a political party; (b) to participate in the activities of, or recruit members for, a political party; or (c) to campaign for a political party or cause.”

On the other hand, Article 151 (3) of the Constitution states; “The retirement benefits payable to a former President and a former Deputy President, the facilities available to and the privileges enjoyed by them, shall not be varied to their disadvantage during their lifetime.”

Rariada MP and senior counsel Otiende Amollo scoffs at the motion calling it a waste of time since the perks are constitutionally guaranteed.

“Some debates are really a waste of time. This purported motion by Senator Cherargei is idle and not worthy of discussion. The benefits due to any former president cannot be altered to their disadvantage during their lifetime. We specifically inserted this in the Constitution (Article 151(3),” Amollo stated.

The same view is supported by Nairobi Senator Edwin Sifuna who is also a lawyer who further cautioned that the Senate has no authority to discuss funding beyond the funds allocated to counties

“There is no way Uhuru Kenyatta’s retirement benefits can be scrapped because they are entrenched in the Constitution. You cannot scrap something that is entrenched in the Constitution through a Senate motion; it can only be done through a referendum. Cherargei’s motion is going nowhere,” Sifuna said.

Koech argues that retirement benefits for former presidents are anchored in the Constitution and should not be used as a political weapon whenever leaders disagree politically.

“Wachana na hii mambo kidogo kidogo mambo ambayo haisaidii. Uhuru Kenyatta, if we were to deal with him, why would you want to… Sasa mambo ya perks ya mtu ambayo iko kwa katiba unasemaje itatolewa?” he quipped.

Suba South MP Caroli Omondi, who is also an advocate, said the motion tabled in the Senate is a futile attempt to gag the rights and freedoms of a retired president to participate in politics.

“Senator Cherargei’s motion seeking to strip Uhuru Kenyatta of his perks and benefits is misplaced and unconstitutional. It is a futile attempt to gag the rights and freedoms of a retired president to participate in politics,” Omondi said.

Leaders have also cited past precedences where the court intervened and declared as illegal a move by the ten Jubilee MPs to deny former Prime Minister Raila Odinga (now deceased) and ex-VP Kalonzo Musyoka their benefits after the 2013 elections.

In 2015, the high court nullified the section of the Retirement Benefits (Deputy President and designated State Officers) Act, 2015, which intended to deny benefits to retired officials engaged in active politics.

“A similar provision introduced then by the Leader of Majority Aden Duale to deny Tinga and Kalonzo their benefits when I was the Speaker was overturned by the high court. I warned back then that it was bad law,” Muturi says.

The party has representative in parliament.

In neighbouring Botswana, the country’s fourth president Ian Seretse Khama fell out with his former Deputy Mokoweetsi Masisi and backed an opposition party.

Khama defected from the ruling Botswana Democratic Party (BDP) in 2019 to join the opposition, subsequently forming the Botswana Patriotic Front (BPF) to challenge Masisi in the 2019 elections.

However, Masisi emerged victorious beating the his ten boss’ preferred candidate.

 Subsequently, Khama fled to exile in South Africa, only returning home after Masisi lost to Advocate Gideon Duma, having served for just one term.

In neighbouring Tanzania, retired Presidents often remain active in politics providing advisories to the ruling party. It’s the former Presidents who play a key role in identifying, grooming and picking a successor with the ruling party.  

Jakaya Kikwete, the fourth President of Tanzania in post retirement has held a central, veteran role within Chama Cha Mapinduzi (CCM) as a loyal party cadre, former national chairman, and a current influential elder statesman. He remains a key party stabilizer who officially endorsed President Samia Suluhu Hassan for a second term in 2025.

Uhuru and his Jubilee party have defended his right to associate with any political cause while citing examples from other jurisdictions where retired heads of states remain active in the politics of their countries.  

They have cited the US, UK, most European Countries while close home citing West and Southern Africa Countries where former Presidents still hold sway.

In the US 44th President Barack Obama is often seen in campaigns that include mayoral elections, state elections and congressional campaigns despite having retired 10 years ago. Obama and Uhuru are agemates.

In South Africa, former President Jacob Zuma formed his own party (Umukhonto We Sizwe) after falling out with the ruling ANC.