Milimani courtThe court ruled that Section 6 of the Presidential Retirement Benefits Act does not unfairly discriminate against former presidents and is a reasonable limitation on their political rights.
Justice Lawrence Mugambi dismissed the petition filed by Peter Odhiambo Agoro, Paul Muiruri Kiguathi and Damon Onyango Osawa, who had challenged the provision on grounds that it violated constitutional rights to equality, freedom of association and political participation.
The petitioners had argued that retired presidents remain Kenyan citizens after leaving office and should therefore enjoy the same political rights as other citizens.
They contended that Section 6 discriminated against retired presidents by restricting their ability to hold office in political parties, while imposing no similar limitation on other citizens.
The section provides that: “A retired president shall not hold office in any political party for more than six months after ceasing to hold office as president.”
It also states that a retired president is expected to “play a consultative and advisory role to the government and the people of Kenya.”
In their petition, the applicants sought a declaration that the provision was unconstitutional and an order compelling Parliament to repeal or amend it to bring it into conformity with the Constitution.
However, Justice Mugambi found that the petitioners had used an improper comparison by placing retired presidents in the same category as ordinary citizens.
“The former President falls in a completely different category,” the judge ruled.
Justice Mugambi said a retired president belongs to a special category of citizens because of the office previously held and the political influence that comes with it.
“His stature in politics cannot be compared to an ordinary citizen who has not held such a high political office and his ability to influence politics in a manner that could hinder genuine political competition,” the judge said.
The court further held that the restriction did not amount to unfair discrimination because the difference in treatment could be justified by the unique position occupied by a former head of state.
The judge noted that the law does not prevent a retired president from belonging to a political party.
“Moreover, as to whether the limitation is reasonable in view of Article 36 and 38 are concerned, it is also necessary to underscore that the former President is not precluded from joining or becoming a member of a political party, only the leadership role is forbidden,” he said.
The petitioners had relied on Articles 27, 36 and 38 of the Constitution, arguing that the restriction violated equality, freedom of association and political rights.
The Attorney General opposed the petition, arguing that the law enjoys a presumption of constitutionality and that political rights can be limited where the requirements of Article 24 of the Constitution are met.
The Registrar of Political Parties, who was an interested party, also opposed the challenge, arguing that the provision was intended to ensure that former presidents rise above partisan politics and serve as elder statesmen.
The court considered the historical circumstances surrounding the enactment of the law in 2003, shortly after the end of the 24-year presidency of former President Daniel arap Moi.
The judge noted arguments that the restriction was introduced amid concerns that a former president could retain significant political influence after leaving office, including by installing a successor while continuing to control a political party.
Parliament, the court observed, viewed such a possibility as a threat to Kenya's emerging democracy.
“This historical fact ... cannot be ignored when considering the constitutionality of Section 6 (1) of the Presidential Benefits Act,” Justice Mugambi said.
He added that the provision was intended to prevent a former president from extending his influence over government through political control after leaving office.
“The purpose therefore was to safeguard democracy by preventing state capture by an influential former head of state exerting his political power beyond his constitutional term,” the judge observed.
Justice Mugambi concluded that the restriction remains necessary and meets the proportionality test under Article 24 of the Constitution.
“I do not think that this provision has outlived its usefulness; that safeguard it provided remains necessary today as it was then,” he said.
The court consequently found the petition without merit and dismissed it.
