- Presidential candidate Raila Odinga has termed a petition filed by Thirdway Alliance Party Leader Ekuru Aukot to bar him from contesting in the August 9 polls an abuse of the court process.
The April 7 petition seeks to bar the Independent Electoral and Boundaries Commission (IEBC) from clearing Odinga, Wiper’s Kalonzo Musyoka, and ANC’s Musalia Mudavadi as candidates for the presidential and deputy president seat in the August 9 general elections.
Odinga argues that the respondents are not yet candidates in the upcoming polls as they are yet to present their respective papers for clearance by IEBC, hence the petition is premature.
“That the respondents are not yet candidates in the forthcoming general elections of August, 2022 as they are yet to present their respective papers for clearance by the Independent Electoral and Boundaries Commission pursuant to Article 88 of the Constitution wherein the Independent Electoral and Boundaries Commission shall clear and register them and deal with any such objections and disputes that shall arise therein as a result of the clearance or rejection of their respective applications for clearance for them to contest in the forthcoming elections,” read the application by Odinga legal team in part.
In his petition, Aukot further argued that Odinga is a public servant under Article 260 of the constitution given that they receive retirement benefits from the consolidated fund.
However, Odinga’s legal team argued that the petition are defective adding that the petitioners are relying on “hearsay materials and inadmissible evidence in the form of newspaper cuttings whose admission and reliance upon in these proceedings is contrary to the provision of the Evidence Act, on the inadmissibility of newspaper cuttings.”
“THAT the position of the entitled persons is neither appointive nor elective and therefore does not qualify to be a Public Office. It applies by operation of the law. The position of the entitled officer does not fit the definition of appointment as contemplated by the Public Service Commission’s Act as read with Articles 234 of the Constitution of Kenya, 2010,” they said.
They pointed out that a retired public officer is not a Public Officer adding that the Public Service Commission, therefore, has no jurisdiction over the entitled persons.
His legal team further noted that section 8 of the Retirement Benefits (Deputy President and Designated State Officers) Act, 2015 does not in any way confer and/or appoint him as an advisor to the government as alleged by Aukot.
“It stipulates that: An entitled person may be requested by the Government to perform, subject to his or her concurrence, specific official function his or her concurrence, specific official functions and shall be paid a reasonable allowance in respect of such official functions,” the application read.
They further argued that the provisions of Article 137 (2) of the Constitution of Kenya, 2010 do not in any way bar Odinga from vying for President by virtue of being a retired public officer adding that the “payment of pension itself does not constitute a bar or a limitation on his fundamental right and freedom as guaranteed under Articles 27, 28, 36, and 38 of the Constitution of Kenya, 2010.”
Odinga called on the court to dismiss the notice of motion application with costs.
