High Court Opens Political Space for Retired Presidents in Ruling Affecting Uhuru Kenyatta
Justice Mwamuye questioned the rationale of allowing a former president to provide counsel to the government while simultaneously restricting the person’s participation in the political process.
High Court declares unconstitutional sections of the law barring retired presidents from active politics. The ruling could allow former President Uhuru Kenyatta to continue participating in political activities without risking his retirement benefits. Photo: Kenyans.co.ke.
By Robert Mutasi
The High Court has declared unconstitutional sections of the law restricting retired presidents from active political participation, a decision that could allow former President Uhuru Kenyatta to continue taking part in political activities without risking his retirement benefits.
Justice Bahati Mwamuye ruled Monday that provisions of the Presidential Retirement Benefits Act that sought to limit the political activities of former presidents were inconsistent with the Constitution. The decision came in a petition filed by Sheria Mtaani through lawyer Shadrack Wambui.
The judge said a president ceases to exercise executive and coercive state authority after leaving office and becomes a private citizen, although one who previously occupied the country’s highest elective office.
Justice Mwamuye questioned the rationale of allowing a former president to provide counsel to the government while simultaneously restricting the person’s participation in the political process.
The court declared Sections 4(1), 4(2) and 4(3) of the Presidential Retirement Benefits Act unconstitutional. It also struck down Section 6, which had been used to restrict retired presidents from holding political party leadership positions after leaving office.
The judgment also barred Parliament from relying on the challenged provisions to withdraw, reduce or withhold retirement benefits from a former president because of political participation.
The ruling has particular significance for Uhuru, who has remained involved in political affairs since leaving office in September 2022. His continued role in the Jubilee Party and his interactions with political leaders have drawn renewed attention as Kenya moves toward the 2027 General Election.
The court’s decision follows a political dispute over whether former presidents should retain their retirement benefits while participating in partisan politics.
In May, Nandi Sen. Samson Cherargei moved a motion seeking a review of Uhuru’s retirement benefits over his continued involvement in political activities. The motion sought to review, reduce or withdraw the former president’s benefits.
The High Court judgment, however, places constitutional limits on such action.
Justice Mwamuye cited Article 151(3) of the Constitution, which provides protection for a former president’s retirement benefits, facilities and privileges during the former president’s lifetime. The judge held that the challenged statutory provisions could not be used to undermine those constitutional protections.
The ruling has also exposed conflicting interpretations within the High Court.
On Sept. 14, Justice Lawrence Mugambi reached a different conclusion in a separate case involving provisions governing the political activities of retired presidents. He upheld Section 6 of the Presidential Retirement Benefits Act and found the restrictions on former presidents’ political party leadership lawful.
The two judgments therefore leave an unsettled legal position that could eventually require clarification by an appellate court.
Justice Mwamuye’s ruling does not give Parliament unlimited authority to interfere with retirement benefits. Instead, it affirms that any legislation concerning former presidents must comply with constitutional protections and political rights.
For Uhuru, the decision removes a legal obstacle that had been cited in arguments against his continued political involvement. It also means his participation in political affairs cannot, under the provisions struck down by the court, be used as a basis for withdrawing his constitutionally protected retirement benefits.
The judgment comes as political activity intensifies ahead of the 2027 General Election, with parties and political movements positioning themselves for the next electoral contest.
The legal dispute could therefore remain significant beyond Uhuru’s individual case, particularly because it establishes competing High Court interpretations of the extent to which Parliament can regulate the political activities and benefits of former presidents.
The next stage could involve an appeal seeking to reconcile the conflicting High Court decisions. Until then, the two judgments represent different judicial approaches to the political rights of retired presidents and the constitutional protection of their retirement benefits.
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