NAIROBI, Kenya July 17 – National Assembly Speaker Moses Wetang’ula and Senate Speaker Amason Kingi have urged the High Court to reject an application seeking to bar them from engaging in partisan political activities, describing the case as premature, politically driven and improperly before the court.
Appearing before Justice David Mburu, lawyers representing the two Speakers argued that the petitioners bypassed legally established dispute resolution mechanisms before filing the case, rendering the petition incompetent.
Senior counsel Milimo told the court that the dispute ought to have been referred first to the Ethics and Anti-Corruption Commission (EACC), the National Assembly’s Powers and Privileges Committee, or addressed through Parliament’s internal dispute resolution procedures under the Standing Orders.
He argued that the Constitution obliges litigants to exhaust all available statutory remedies before seeking the intervention of the High Court.
Milimo further submitted that the issues raised in the petition are already before the Court of Appeal in six separate cases, including the question of whether the Speakers of Parliament can simultaneously hold political party positions or other public offices.
He cautioned that proceeding with the petition could lead to contradictory judicial pronouncements.
“The prudent course is for this court to await the outcome of the appeals before the Court of Appeal. Any contrary finding risks creating conflicting decisions within the judicial system,” Milimo submitted.
The defence also asked the court to expunge newspaper articles and other media reports attached to the petition, arguing that they amount to inadmissible hearsay and cannot be relied upon in determining whether conservatory orders should be issued.
On the merits of the case, the respondents maintained that constitutional restrictions on political activity apply to appointed State officers and not to elected office holders.
They argued that both Wetang’ula and Kingi assumed office through an electoral process and therefore retain the political rights guaranteed under Article 38 of the Constitution.
Milimo said Wetang’ula, who also serves as Ford Kenya party leader and Chairperson of the Parliamentary Service Commission, cannot lawfully be restrained from participating in political activities, contending that such orders would unjustifiably curtail his constitutional freedoms and hinder the discharge of his official responsibilities.
The respondents further argued that the petitioners had failed to establish a prima facie case or demonstrate any imminent prejudice warranting the issuance of conservatory orders.
“There is no urgent constitutional question requiring preservation. This is essentially a political contest disguised as litigation. The orders sought are intended to silence the Speakers and prevent them from engaging with the public,” Milimo told the court.
He added that declining the conservatory orders would not prejudice the substantive petition, which would still be heard and determined on its merits.
Another lawyer representing the Speakers urged the court to refrain from adjudicating political contests.
“The judiciary should not become an arbiter of political competition. If the petitioners disagree with the Speakers’ political positions, the appropriate forum is the political arena,not the courtroom,” counsel submitted.
The application was, however, strongly opposed by the petitioners.
Lawyer Ian Mutiso argued that both Wetang’ula and Kingi had openly taken part in political campaigns, conduct he said violates the constitutional principles of separation of powers, leadership and integrity.
He told the court that the petition raises weighty constitutional questions on whether the holders of the offices of Speaker of the National Assembly and Speaker of the Senate are bound by the national values and principles of governance, including the duty to remain politically impartial while serving in those positions.
Mutiso urged the court to retain the conservatory orders, saying they are necessary to safeguard constitutional governance and preserve the integrity of the proceedings pending the determination of the petition.
He also relied on advisory guidelines issued by the Commission on Administrative Justice on political neutrality among public officials, arguing that if the two Speakers intend to actively participate in partisan politics, they should first relinquish their offices.
Lawyer Abner Mango echoed the petitioners’ position, submitting that the conservatory orders were directed at the individual office holders and remain binding unless varied or vacated by the court.
He argued that the offices of the Speaker of the National Assembly and Speaker of the Senate occupy unique constitutional positions and that active involvement in partisan politics undermines the doctrine of separation of powers and public confidence in Parliament’s impartiality.
Mango further contended that the application seeking to suspend the conservatory orders is legally untenable, insisting that parties must first comply with existing court orders before seeking any variation or relief.
Justice David Mburu is expected to issue directions after considering the submissions by all parties.