Peter Odhiambo Agoro, Paul Muiruri Kiguathi & Damon Onyango Osawa v Attorney General, National Assembly of the Republic of Kenya, Registrar of Political Parties & Law Society of Kenya

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E154 OF 2023** **IN THE MATTER OF ARTICLES 1, 2, 3(1), 10, 19(3)(c), 20(3) & (4), 22, 23, 24, 38, 48, 50(1), 73, 75, 151, 159, 165, 176, 177, 178, 179, 183, 185, 186, 196, 212, 258 AND 259 OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF THE ALLEGED THREATS TO ARTICLES 1(1) & (3), 2, 3(1), 10(1) & (2)(c) & (d), 38, 48, 73, 75, 151, 179, 183, 186 & 196 OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF SECTION 6 OF THE PRESIDENTIAL RETIREMENT BENEFITS ACT NO 11 OF 2003** **AND** **IN THE MATTER OF ARTICLE 38 OF THE CONSTITUTION OF KENYA ON POLITICAL RIGHTS** **AND** **IN THE MATTER OF ARTICLE 151(3) OF THE CONSTITUTION OF KENYA ON REMUNERATION AND BENEFITS PAYABLE TO A RETIRED PRESIDENT** **AND** **IN THE MATTER OF ARTICLE 2 OF THE CONSTITUTION ON THE SUPREMACY OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF THE ENFORCEMENT OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF ARTICLE 10 OF THE CONSTITUTION OF KENYA ON NATIONAL VALUES & PRINCIPLES OF GOVERNANCE** **AND** **IN THE MATTER OF CHAPTER 7 OF THE CONSTITUTION OF KENYA ON THE REPRESENTATION OF THE PEOPLE** **AND** **IN THE MATTER OF CHAPTER 6 OF THE CONSTITUTION OF KENYA ON LEADERSHIP AND INTEGRITY** **AND** **IN THE MATTER OF THE DOCTRINE OF LEGITIMATE EXPECTATION** **BETWEEN** **PETER ODHIAMBO AGORO…………….…..…………………1ST PETITIONER** **PAUL MUIRURI KIGUATHI………………….………………. 2ND PETITIONER** **DAMON ONYANGO OSAWA…………….…………………….3RD PETITIONER** **VERSUS** **ATTORNEY GENERAL…………...……………….............…1ST RESPONDENT** **NATIONAL ASSEMBLY OF THE** **REPUBLIC OF KENYA……………………..…………………2ND RESPONDENT** **AND** **REGISTRAR OF POLITICAL PARTIES……………1ST INTERESTED PARTY** **LAW SOCIETY OF KENYA…………………………..2ND INTERESTED PARTY** **JUDGMENT** **Introduction** 1. The petition dated 8th May 2023 is supported by the petitioners’ affidavit in support. 2. The petition challenges the constitutionality of **Section 6 of the Presidential Retirements Benefits Act** which prohibits a retired president from holding office in a political party or engage in political activities. 3. On this premise, the petitioners seek the following relief: - 4. **A declaration be and is hereby issued that Section 6 of the Presidential Retirement Benefits Act is inconsistent with the constitution as per Article 2(4) and hence is null and void ab initio.** 5. **Spent** 6. **An order be and is hereby issued compelling the 2nd respondent to repeal and/or amend the said section to ensure conformity with the Constitution of Kenya.** 7. **The Honourable Court do make any such other or further orders as it may deem just and expedient in the circumstances to remedy the violation aforesaid.** 8. **Costs of this petition to be granted to the petitioners.** 9. In opposition to the petition, the 1st respondent and 1st Interested Party filed Grounds of Opposition dated 9th June 2023 and 31st May 2023 respectively. **The Petitioners’ Case** 1. The petitioners contend that **Section 6 of the Presidential Retirements Benefits Act** providing that a retired president should not hold office in any political party or engage in political matters should be declared unconstitutional, null and void as it infringes **Articles 2, 38** and **151** of the Constitution on supremacy and political rights. Further the said provision accords an unfair advantage to some people and hence breaches the requirement of fairness, equality and proportionality. **The 1st Respondent’s Case** 1. The 1st respondent states that **Section 6 of the Presidential Retirement Benefits Act** enjoys the presumption of legality and constitutionality and it is upon the party alleging unconstitutionality to demonstrate the alleged illegality at a full and fair hearing. The impugned law does not provide an absolute bar to the exercise of political rights by a retired president but only to the extent of holding office in a political party. Furthermore, political rights are subject to the limitations contemplated under **Article 24 of the Constitution**. 2. The 1st respondent argues that the impugned law is rationally astute, having been formulated on the principle that not every differentiation or discrimination in law is unlawful or unconstitutional. Furthermore **Article 259 of the Constitution** requires that the court in considering the constitutionality of any issue before it, interpret the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law and contributes to good governance. In exercising its judicial authority, the court is obliged to protect and promote the purpose and principles of the Constitution. Additionally, the 1st respondent invites the court to take judicial notice of the social and historical context that necessitated various electoral and political reforms leading to the promulgation of the 2010 Constitution. Accordingly, the impugned law serves to promote the spirit and purpose of the Constitution in particular, the values and principles espoused under **Article 10 of the Constitution**. **The 1st Interested Party’s Case** 1. The 1st interested party argues that **Section 6 of the Presidential Retirement Benefits Act** has been in existence for over two decades and it therefore begs the question why the petitioners have never questioned its constitutionality for all that time only to wake up now. The 1st interested party further argues that once a person retires from the office of the presidency, he or she rises above factional politics and graduates into the stature of an “elder statesman” and an overall advisor of the entire nation, which position Section 6 of the impugned Act seeks to protect. Further, there is a presumption of constitutionality on any statute and the contrary cannot be proven in an interim application. 2. The petition was disposed of by way of written submissions. **Petitioners’ Submissions** 1. The petitioners submitted that **Section 6 of the Presidential Retirement Benefits Act** is inconsistent with the constitution as the provision discriminates against retired presidents by imposing restrictions on their right of association as well as political participation that are not applicable to other citizens. By restricting the ability of retired presidents to hold office in political parties, the provision unduly limits their freedom to associate freely. Further, the impugned law curtails the political rights of retired presidents thereby denying them the right to participate in the political process fully and upon exiting office, retired presidents do not cease from being citizens of Kenya and thereby limiting access to some rights reserved to citizens. Further **Section 6 of the Presidential Retirement Benefits Act** limits the period of retired presidents to hold office in a political party to a period of six months after leaving office. The petitioners argued that that restriction is discriminatory and violates the principle of equality before the law as it subjects the presidents to a different standard than other citizens, without a justifiable basis. The limit on political participation infringes upon the freedom of association guaranteed under Article 36 of the Constitution. 1. The petitioners cited the case of **Re: The Matter of the Interim Independent Electoral Commission [2011] eKLR** and submitted that the interpretation of constitutional provisions must align with the principles and values enshrined in the Constitution. Further in **Trusted Society of Human Rights Alliance vs Attorney General & 2 Others [2012] eKLR** the High Court stated that any law that purports to limit a constitutional right must meet the strict requirements set out in the Constitution particularly the tests of legality, necessity and proportionality. Additionally, in **John Harun Mwau vs Independent Electoral and Boundaries Commission & Another [2013] eKLR** the court addressed the issue of discrimination and the need for laws to apply uniformly to all persons, reinforcing the principle of equality before the law. Like dependence was placed in the case of **Centre for Rights Education and Awareness (CERAW) & 7 Others vs Attorney General [2011] eKLR** where the High Court held that any statutory provision that infringes on constitutional rights is invalid to the extent of its inconsistency with the Constitution. 1. The petitioners argued that the constitutional principles of equality, freedom of association and political rights are not unique to Kenya. Comparative jurisprudence from other jurisdictions provide valuable insights into the said principles. In the United States, the case of **Buckley vs Valeo 424 US 1 (1976)** highlighted the importance of protecting political freedoms, including the right to association and participation in political activities. Further in South Africa in **New National Party of South Africa vs Government of the Republic of South Africa & Others [1999] ZACC 5** the court underscored the significance of political rights and the necessity for laws to respect these fundamental freedoms. **The 1st Respondent’s Submissions** 1. The 1st respondent cited **Article 259 of the Constitution** and the case of **Centre for Rights Education and Awareness & 2 Others vs John Harun Mwau & 6 Others [2012] eKLR** which lays out the guiding foundation for the interpretation of the Constitution. The court summarized the principles as follows:- **Under Article 259 of the Constitution, the court is enjoined to interpret the constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the bill of rights and in a manner that contributes to good governance. In exercising its judicial authority, this court is obliged under Article 159(2)(e) of the Constitution to promote the purposes and principles of the constitution.** **There is the general presumption that every Act of Parliament is constitutional and the burden of proof lies on every person who alleges otherwise. (The court should start by assuming that the Act in question is constitutional).** **In determining whether a statute is constitutional or not, the court must determine the object and purpose of the impugned statute for it is important to discern the intention expressed in the Act itself. Further, in examining whether a particular statutory provision is unconstitutional, the court must have regard not only to its purpose but also to its effect.** **The constitution should be given a purposive, liberal interpretation.** **That the provisions of the constitution must be read as an integrated, whole, without any one particular provision destroying the other but each sustaining the other.** **The spirit of the constitution must preside and permeate the process of judicial interpretation and judicial discretion.** 1. Further reliance was placed in the case of **Hamdard Dawakhana & Anor vs The Union of India (Uoi) & Others AIR1960 SC 554, 1960 Cri. LJ 671 (1960) IIMLJ 1 SC 1960, 2 SCR 671** where the superior court held:- **In examining the constitutionality of a statute it must be assumed that the legislature understands and appreciates the needs of the people and the laws it enacts are directed to problems which are made manifest by experience and the elected representatives in a legislature and it enacts laws which they consider to be reasonable for purposes for which they were enacted. Presumption is therefore in favour of the constitutionality.** **That in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, the history of the times and may assume every state of facts which can be conceived as existing, at the time of legislation.** 1. Similar reliance was placed on the case of **Federation of Women Lawyers (FIDA) vs Attorney General & Another [2018] eKLR** where the court held that all constitutional provisions bearing upon a particular subject are to be brought into view and interpreted so as to effectuate the greater purpose of the instrument. 1. The 1st respondent submitted that the right to equal protection and benefit of the law and the right to the enjoyment of political rights as provided for under Articles 27 and 38 are not absolute. Article 24 permits the limitation of fundamental rights and freedoms to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom. When reviewing the validity of a law whose constitutional validity has been challenged, the courts have laid down two main standards for consideration:- 2. **The rationality test- the standard that applies to all legislation under the rule of law.** 3. **The reasonableness or proportionality test which applies when legislation limits a fundamental right in the Bill of Rights. Article 24(1) of the Constitution provides that such a limitation is valid only if it is “reasonable and justifiable in an open and democratic society.”** 4. The 1st respondent argued that **Article 27 of the Constitution** does not prohibit discrimination but rather unfair discrimination. Further, superior courts have held that mere differentiation or inequality of treatment does not per se amount to discrimination. A person claiming unfair discrimination must first establish that because of a distinction drawn between them and others, they have been denied equal protection or benefit of the law. The claimant must also demonstrate that the denial is unreasonable or arbitrary and that it does not rest on any rational basis having regard to the object which is the legislature had in mind when enacting the statutory provision. 5. The 1st respondent contended that what calls for determination is what constitutes discrimination and under what circumstances the court can interfere in allegations of discrimination. In **Peter K. Waweru vs Republic [2006] eKLR** discrimination was defined in the following terms:- **Discrimination means affording different treatment to different persons attributable wholly or mainly to their descriptions whereby persons of one such description are subjected to….restrictions to which persons of another description are not made subject or accorded privileges or advantages which are not accorded to persons of another such description…Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age, sex….a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.** 1. Unlawful or unfair discrimination may be direct or subtle. Direct and indirect discrimination were distinguished in the case of **Nyarangi & Others vs Attorney General [2008] KLR 688** when it was stated that:- **Direct discrimination involves treating someone less favourably because of their possession of an attribute such as race, sex, religion compared to someone without that attribute in the same circumstances. Indirect or subtle discrimination involves setting a condition or requirement which is a smaller proportion of those with the attribute are able to comply with, without reasonable justification. The US Case if Griggs vs Duke Power Company 1971 401 US 424 91 is a good example of indirect discrimination, where an aptitude test used in a job application was found to disqualify negros at a substantially higher rate than white applicants.** 1. Further reliance was placed in the case of **Kedar Nath vs State of W.B. (1953) SCR 835 (843)** where the court held:- **Mere differentia or inequality of treatment does not per se amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislation has in view.** 1. Further reliance was placed on the case of **John Harun Mwau vs Independent Electoral and Boundaries Commission & Another [2013] eKLR** where the court considered the provisions of Article 27 wherein it stated:- **It must be clear that a person alleging a violation of Article 27 of the Constitution must establish that because of the distinction made between the claimant and others the claimant has been denied equal protection or benefit of the law. It does not necessarily mean that different treatment or inequality will per se amount to discrimination and a violation of the constitution.** 1. The 1st respondent contended that the impugned law does not provide an absolute bar to the exercise of political rights by a retired president or limit a retired president’s right of association or subject him or her to unequal benefit of the law. Section 6(1) is clear that it only bars a retired president from holding office in any political party for more than six months after ceasing to hold office as president. That simply means that a retired president while exercising all his/her other political rights, he/she is estopped from holding office in a political party at the lapse of six months after his/her retirement. 2. Furthermore, **Section 23 of the Political Parties Act** establishes the Political Parties Fund whose purpose is established under Section 26 of the Act to inter alia defray administrative and staff expenses of the political party. Consequently, the 1st respondent argued that if the president were to hold office in a political party he would then be eligible to receiving benefits twice i.e benefits accruing to him/her as a retired president under Article 151 and benefits accruing to him as a holder of an office in a political party in contravention of Article 20(d). The 1st respondent submitted that the petitioner has failed to prove the alleged discrimination under Article 27 as he merely cites the provisions alleged to have been violated. Thus, without a proper and sufficient demonstration of the alleged violations, the impugned provisions remain legitimate and constitutional. **The 2nd Respondent’s Submissions** 1. The 2nd respondent identified four issues for determination as follows; whether the petition is premature and violates the doctrine of separation of powers; whether the petitioner exhausted alternative remedies under **Article 119 of the Constitution**; whether the petitioner has rebutted the presumption of constitutionality of the Presidential Retirement Benefits Act and whether the petition meets the pleading threshold under the Anarita Karimi Njeru case standard. 2. On the first issue, the 2nd respondent cited **Articles 94 and 95 of the Constitution** and submitted that the judiciary cannot usurp the legislative mandate in a bid to maintain the doctrine of separation of powers. To buttress that point reliance was placed in the case of **Republic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) [2024] KESC 34 (KLR)** where the court opined that courts rightfully exercised their constitutional mandate to interpret the law and declare statutes unconstitutional where warranted; however, in doing so, they remain mindful of the doctrine of separation of powers, which assigns the enactment and repeal of legislation to Parliament by stating as follows:- **This is why, even in the Muruatetu case, this court was keen to still defer to the legislature as the proper body mandated to legislate. While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions. In that regard, we echo with approval the words of the High Court in the case of Trusted Society of Human Rights vs Attorney General & Others High Court Petition No. 229 of 2012 [2012] eKLR at paragraphs 63-64 where it held as follows:** **Although the Kenyan Constitution contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the Constitution, regarding the necessity of separating the governmental functions. The Constitution consciously delegates the sovereign power under it to the three branches of government and expects that each will carry out those functions assigned to it without interference from the other two.** 1. Further reliance was placed in the Supreme Court case of **Cabinet Secretary for the National Treasury and Planning & 4 Others vs Okoiti & 52 Others; Bhatia (Amicus Curiae) [2024] KESC 63 (KLR)** where the court stated that courts are required to exercise judicial restraint in policy matters, intervening only to the extent necessary to uphold constitutional compliance when they determined as follows:- **In South Africa, it is generally accepted that executive government policies are better challenged politically and not judicially. In National Treasury & 5 Others vs Opposition to Urban Tolling Alliance & 4 Others [2012] ZACC 18 the Constitutional Court stated as follows:** **It is undisputed that in July 2007 the Cabinet approved the Gauteng Freeway Improvement Project and the concomitant basis for its funding, e-tolling, after extensive investigation and a report to it on the issue. It is national executive and treasury policy not to use fuel levy type funding for these kinds of projects. None of this was, or could be, attacked on review in this Court. The playing field for the contestation of executive government policy is the political process not the judicial one.** **The Constitutional Court of South Africa has proceeded to demarcate the courts’ role in reviewing policy questions in International Trade Administration Commission vs SCAW South Africa (Pty) Limited 2012 (4) SA 618 (CC) at paragraph 95 thus…The primary responsibility of a court is not to make decisions reserved for or within the domain of other branches of government, but rather to ensure that the concerned branches of government exercise their authority within the bounds of the Constitution. This would especially be so where the decision in issue is policy laden as well as polycentric.** **Our position therefore remains what we have consistently stated in the decisions we have made reference to, that as a rule of thumb, courts should restrain from intervening in policy matters…..** **In our view therefore, nothing turns on whether a policy is manifested through a law or flows from a given policy, as a policy may be made pursuant to a statutory requirement. What remains evident is that the National Government and Parliament are bestowed with constitutional mandates and functions on one hand, and the courts with the mandate of interpreting or testing them against the constitution on the other hand. These are distinct but interdependent roles that have to be undertaken under the current design of the Constitution. Since all arms of government serve the same people, the policy makers through exercise of public participation should endeavour to make policies that are consistent with the Constitution and resonates with the people.** 1. Further in **Katiba Institute vs Attorney General & 9 Others [2023] KESC 47 (KLR)** the Supreme Court stated that while courts have the constitutional duty to ensure that state organs act within the bounds of the Constitution, they must exercise this oversight without overstepping their role or usurping the functions of those organs in line with the doctrine of separation of powers, when they determined as follows:- **The only caveat to this constitutional proclamation is that, in reviewing the administrative actions of these organs, the court must not substitute itself into the organs whose actions or decisions are the subject of review or substitute the impugned decision with its own decision. That is what the** **doctrine of separation of powers demands. See the persuasive decision in Kenya Youth Parliament & 2 Others vs AG & Another, Constitutional Petition No. 101 of 2011 [2012] eKLR, our own in the case of Judicial Service Commission vs Speaker of the National Assembly & 8 Others [2014] eKLR.** 1. The 2nd respondent submitted that the petitioners’ case is premature and improperly before the court as they failed to exhaust the available legislative remedies under our constitutional and legal framework. Reliance was placed in the case of **Kimani vs Mugan Chief Githurai 44 Location & 8 Others [2025] KEELC 3358 (KLR)** where the court stated:- **The doctrine of exhaustion and its applicability has been elaborated upon in a number of decisions. In the case of Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR, the Supreme Court stated as hereunder:** **Similarly the US Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of.** **On appeal, the Court of Appeal dismissed the appeal stating that: “The appellant might want to argue that he has a constitutional right of access to justice, and we agree that he does, but the High Court and this court have pronounced themselves many times to the effect that a party must first exhaust the other processes availed by other statutory dispute resolution organs, which are by law established before moving to the High Court by way of constitutional petitions…..** **In the pursuit of such sound legal principles, it is our disposition that disputes disguised and pleaded with the erroneous intention of attracting the jurisdiction of superior courts is not a substitute for known legal procedures. Even where superior courts had jurisdiction to determine profound questions of law, first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute.** **Likewise, the necessity to exhaust existing statutory dispute resolution mechanisms before approaching the jurisdiction of the court was also highlighted in the case of Nicholus vs Attorney General & 7 Others; national Environmental Complaints Committee & 5 Others [2023] KESC 113 (KLR) 106. The restraint and effective remedy rule, which we find favour in, is what led the Supreme Court of India in United Bank of India vs Satyawati Tondon & 5 Others (2010) 8 SCC to state as follows:** **Flowing from the above findings and in that context, it is our view that, where the reliefs under the alternative mechanism are not adequate or effective, then there is nothing that precludes the adoption of a nuanced approach, as we have stated. What must matter at the end is that a path is chosen that safeguards a litigant’s right to access justice while also recognizing the efficiency and specificity that established alternative dispute resolution mechanisms can offer. This is because, to achieve a harmonious and effective legal framework, it is imperative to strike a judicious balance between the emphasis on providing the initial opportunity for resolution to entities established by law and the assertion of a litigant’s right to access the court. However, such convergence requires a case by case assessment by considering issues such as the nature of the dispute and the adequacy of the alternative dispute mechanism.** **Finally, it is also important to reference the decision in Geoffrey Muthinja & Another vs Samuel Muguna Henry & 1756 Others [2015] KECA 304 (KLR) where the Court of Appeal emphasized the need to comply with the doctrine of exhaustion. The court stated as hereunder:** **It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution.** 1. The 2nd respondent argued that Article 119 of the Constitution provides citizens with a direct and effective avenue to petition parliament for legal reforms yet the petitioners have presented no evidence of having utilized the said mechanism. Further, the Presidential Retirement Benefits Act has undergone amendments demonstrating the National Assembly’s engagement as need has arisen with the legislation. Further, the petition creates a judicial intrusion into the National Assembly’s core legislative mandate. **Article 94 of the Constitution** vests exclusive law making authority in Parliament including the discretion to determine legislative priorities and timelines while **Article 95(3) of the Constitution** specifically outlines that the National Assembly enacts legislation in accordance with Part 4. The 2nd respondent thus urges the court to uphold the doctrine of separation of powers and exercise restraint in granting the reliefs sought. 1. The 2nd respondent argued that the petition fails to meet the threshold of justiciability as the petitioner alleges constitutional violations but provides no evidence of actual harm suffered under the current framework. The absence of any tangible prejudice renders the claims unsuitable for judicial determination at the current stage. Reliance was placed in the case of **Wanjiru Gikonyo & 2 Others vs National Assembly of Kenya & 4 Others [2016] KEHC 5536 (KLR)** where the court held:- **By justiciability it is meant a matter “proper to be examined in courts of justice” or a question as may properly come before a tribunal for decision. See Black’s Law Dictionary 9th Ed pp 943-944. In other words, courts should only decide matters that require to be decided. Thus in Ashwander vs Tennessee Valley Authority [1936] 297 US 288, the US Supreme Court stated that courts should only decide cases which invite a real earnest and vital controversy.** **Effectively, the justiciability dogma prohibits the court from entertaining hypothetical or academic interest cases. The court is not expected to engage in abstract arguments. The court is prevented from determining an issue when it is too early or simply out of apprehension hence the principle of ripeness. An issue before the court must be ripe, through a factual matrix for determination.** **In Coalition for Reform and Democracy (CORD) & 2 Others vs Republic of Kenya & Another HCCP 628 of 2014 [2015] eKLR, the court cited the case of Patrick Ouma Onyango & 12 Others vs AG & 2 Others Misc. Appl No. 677 of 2005 wherein the court had endorsed the doctrine of justiciability as stated by Lawrence H. Tribe in his treatise American Constitutional Law, 2nd Ed. Page 92 as follows:** **In order for a claim to be justiciable as an article III matter, it must present a real and substantial controversy which unequivocally calls for adjudication of the rights asserted. In part, the extent to which there is a real and substantial controversy is determined under the doctrine of standing by an examination of the sufficiency** **of the stake of the person making the claim, to ensure the litigant has suffered an actual injury which is fairly traceable to challenged action and likely to be redressed by the judicial relief requested…** **Finally, related to the nature of the controversy is the political question doctrine, barring decision of certain disputes best suited to resolution by other governmental actors…..** **While the main consideration in the exercise of discretion appears to be the ultimate effect of an order of constitutional invalidity, my view is that all relevant facts must be taken into consideration.** **The totality of the circumstances ought to be taken into account. The court must also consider the issue of retrospectivity and the question of what orders, if at all may need to be fashioned in respect of any matters already dealt with under the challenged legislation, especially where they led to a violation of any guaranteed rights and freedoms. Thirdly the court ought to consider the stage at which the repeal takes place.** **In the end, the court must endeavour to ensure that it avoids giving advisory opinions on abstract propositions of law where there ceases to exist any live controversy.** 1. Similar reliance was placed on the case of **Free Kenya Initiative & 17 Others vs Independent Electoral & Boundaries Commission & 5 Others; Kenya National Commission on Human Rights & Another (Interested Parties) [2022] KEHC 10217 (KLR)** where the court held:- **In reinforcing the position that courts exist to resolve actual disputes, the High Court in Nairobi High Court Constitutional Petition No. E090 of 2022 (as consolidated) Okiya Omtatah Okoiti & Others vs The Hon. Attorney General & Others (unreported) stated as follows:-** **Courts exist to resolve actual disputes. They are not in the business of engaging in academic or abstract discourse that is not anchored in disputed facts. That is why the constitution does not confer upon this court the jurisdiction to issue advisory opinions. The court in John Harun Mwau & 3 Others vs Attorney General [2012] eKLR, held that it could not deal with hypothetical issues and that the jurisdiction to interpret the Constitution under Article 165(3)(d) does not exist in a vacuum and is not exercised independently in the absence of a real dispute. The court explained that the jurisdiction is exercised in the context of a controversy.** **The aforesaid position is encapsulated in the principle of mootness, ripeness and justiciability as explained by Onguto J in Wanjiru Gikonyo & Others vs National Assembly of Kenya & 4 Others Petition No. 453 of 2015 [2016] eKLR as follows:** **Effectively, the justiciability dogma prohibits the court from entertaining hypothetical or academic interest cases. The court is not expected to engage in abstract arguments. The court is prevented from determining an issue when it is too early or simply out of apprehension hence the principle of ripeness. An issue before the court must be ripe, through a factual matrix for determination.** **Conversely, the court is also prevented from determining an issue when it is too late. When an issue no longer presents an existing or live controversy, then it is said to be moot and not worthy of taking the much sought judicial time…** **The application of the aforementioned principles depends on the facts of each case. in Wanjiru Gikonyo case (supra) the learned Judge again stated:** **There is settled policy with clear arguments as well as out of repetitive precedent that courts and judges are not advise givers. The court ought not to determine issues which are not yet ready for determination or is only of academic interest having been overtaken by events. The court ought not to engage in premature adjudication of matters through either the doctrine of ripeness or of avoidance. It must not decide on what the future holds either.** **It is however to be noted that the court retains the discretion to determine whether on the circumstances of any matter before it still ought to be determined.** **On the basis of the foregoing, this court reiterates the position that the duty to amend the Political Parties Act lie with Parliament.** 1. On the second issue, the 2nd respondent submitted that the petitioners had the option to petition parliament directly for legislative changes under **Article 119 of the Constitution**. They further submitted that the petitioners did not make use of the established and easily accessible process provided by the law which includes the ability to submit petitions well documented through factsheets and reflected in committee reports available on parliament’s website and the Bunge Digital Library. Thus the petition is premature and improperly before the court as it undermines the principles of judicial restraint and separation of powers by inviting interference with the National Assembly’s legislative mandate. Reliance was placed in the Court of Appeal decision in **Geoffrey Muthinja & Another vs Samuel Muguna Henry & 1756 Others [2015] KECA 304 (KLR)** held thus:- **Courts ought to be the fora of last resort and not the first port of call the moment a storm brews……** **This accords with Article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution.** **We find and hold that the exhaustion doctrine applies even where, as was argued by the appellants herein, what is sought to be challenged is the very authority of the organs before whom the dispute was to be placed.** 1. Further reliance was placed in the case of **Waity vs Independent Electoral & Boundaries Commission & 3 Others [2019] KESC 54 (KLR)** where the apex court essentially held that disputes must first be resolved through designated non judicial forums to prevent forum shopping and preserve judicial integrity. 1. On the third issue, the 2nd respondent cited the publication by Jain Tarun titled “Presumption of Constitutionality” (December 31 2007) Icfai University Publications, Forthcoming which defined the presumption as follows:- **It is a method of allocating and heightening the burden of legal persuasion, requiring the party challenging the statute to make a legal argument so convincing that unconstitutionality is shown “beyond reasonable doubt.”** **According to what the court calls the “presumption of constitutionality” legislation will be upheld if any “rational basis” for its passage can be imagined, unless it violates a “fundamental” right and liberty has not been deemed by the court to be a fundamental right.** **From a legal standpoint, the presumption is based on the judiciary’s recognition that a coordinate branch of legislature determined that the law was constitutional before enacting it. In a related way, the presumption is also based on the principle of separation of powers; it upholds the doctrine of separation of powers by preserving the integrity of the legislative function and protects the domain of the legislature from encroachment by the judiciary. Giving effect to this presumption, the court marked out a high standard to test a statute’s constitutionality.** 1. The Supreme Court in **Katiba Institute vs Attorney General & 9 Others [2023] KESC 47 (KLR)** stated thus in regards to the presumption of constitutionality:- **There is a general presumption that every Act of Parliament is constitutional and the burden of proof lies on the person who alleges otherwise..** **This court, for its part, in the case of Law Society of Kenya vs Attorney General & Another, SC Petition No. 4 of 2019 [2019] eKLR after reviewing many decisions from this and outside jurisdictions, restated that principle, which requires that, in determining whether a statute or a provision is constitutional or not, the court must ascertain the object, purpose and effect of that statute; to discern the intention expressed in the statute itself.** 1. Statutes enjoy a presumption of validity unless proven otherwise as asserted in **Kutoto & Another vs Musalia Mudavadi, Prime Cabinet Secretary & Acting Cabinet Secretary for Interior and National Administration & Another; Ilmoitanik Ilkitoip Age Set Elders & 3 Others (Interested Parties) [2025] KEHC 5045 (KLR)**:- **As such, the constitution remains supreme and the laws are always presumed to be constitutional until the contrary is proved. In a matter therefore, where the constitutionality of a statute is impugned or an issue arises as to whether the constitution is contravened, courts must weigh with care and at a preliminary stage, the alleged breach against the provisions of the constitution and the doctrine of presumption of constitutionality and legality of statutes….** **Thirdly, until the contrary is proved, legislation is presumed to be constitutional. It is a sound privilege of constitutional construction that legislation should receive such a construction as will make it operative. Fourthly since as stated, a short while ago, there is a presumption of constitutionality, the onus is upon those who challenge the constitutionality of the legislation and they have to rebut the presumption…** **It is a grave legal and constitutional step to suspend the operation of statutes and statutory provisions. The courts must wade with care, prudence and judicious wisdom….** **It is my view that the principle of the presumption of constitutionality of legislation is imperative for any state that believes in democracy, the separation of powers, and the rule of law in general. Further, the courts’ ability to suspend legislation during peacetimes when there is no national disaster or war would, in my view, interfere with Parliament’s independence and supremacy in its constitutional duty of legislating law.** 1. The 2nd respondent argued that the petitioners have failed to demonstrate any personal injury or actual harm caused by Section 6 of the Presidential Retirement Benefits Act and have instead made abstract claims about constitutional violations without showing how the provision specifically affects them or undermines democracy. Further, their claim of discrimination lacks merit as they have failed to demonstrate that the impugned section has either prevented any retired president from engaging in general political discourse (including debates or sharing political views in exercise of their rights to freedom of expression and association) given that the restriction only applies to holding a formal party office; resulted in any unfair electoral advantage or distortion of democratic processes. Thus, their contentions are speculative and unsubstantiated. Moreover, the petitioners overlooked the balanced nature of Section 6 which merely restricts formal party leadership while preserving retired presidents’ rights to advise government and perform state functions. 1. On the final issue, the 2nd respondent contended that the petition violates the Anarita Karimi standard which requires precise pleadings. A constitutional petition must be pleaded with specificity and supported by clear evidence showing how constitutional rights have been violated. Reliance was placed in the case of **Kipchirchir vs Cabinet Secretary for Lands & 6 Others [2024] KECA 1484 (KLR)** where the court opined as follows:- **In the often cited case of Anarita Karimi Njeru vs Republic [1979] eKLR, it was held regarding pleadings in constitutional petitions that:** **We would however again stress that if a person in seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important that (if only to ensure that justice is done to his case) that he should set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed.** 1. In the instant case, the petitioners’ allegations are framed in overly broad and imprecise terms, claiming breaches of general constitutional principles without articulating in a reasoned manner how Section 6 of the Act offends those provisions. While they invoke Articles 2, 38, 151(3), they have not provided a substantive analysis demonstrating how these articles are implicated by the impugned legislative framework. Further, the petitioners have not demonstrated any personal stake in the matter. Their reliance on jurisdictional Article 159, 160, 165, 22, 23, 24 and 258 is misplaced as while the said provisions establish the court’s authority, they cannot substitute for the fundamental requirement to demonstrate actual standing and concrete injury. Additionally without proof of personal stake or demonstratable harm, the petition amounts to an academic exercise as the petitioners’ failure to link the cited constitutional provisions to any tangible injury leaves their claim non justiciable. Further, the petition mistakenly assumes that alleging a constitutional violation alone suffices, without addressing the legitimate public policy objectives behind the legislation such as promotion of political fairness and supporting a dignified transition for former heads of state. 2. Additionally, the petitioners have not challenged Section 6 of the Act by providing affidavits from retired presidents to show how the law actually restrict their political rights; data or expert analysis showing that the law has skewed elections or suppressed political competition; polls or studies showing that ex presidents’ party involvement does not promote democracy and a table linking each alleged violation to specific actions barred by Section 6. **The 1st Interested Party’s Submissions** 1. The 1st interested party identified two issues for determination as follows; whether the petitioners have satisfied the conditions for grant of conservatory orders and whether the limitation under **Section 6(1) of the Presidential Retirement Benefits Act** is inconsistent with **Article 27, 36 and 28 of the Constitution**. The first issue was already spent. 2. On the second issue, the 1st interested party cited **Article 259(1) of the Constitution** and the case of **R vs Big M. Drug Mart Ltd 1985 CR 295** cited in the case of **Robert Alai vs The Hon Attorney General & Another [2017] eKLR**, where the court stated: **Both purpose and effect are relevant in determining constitutionality, either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of legislation, object and its ultimate impact are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in assessing the legislation’s object and thus the validity.** 1. The 1st interested party submitted that the office of the president is a very unique office in the sense that it grants significant powers to the holder of the seat and can only be occupied by one individual every five years and thus the provisions will only ever apply to a select few individuals. Further, **the Act was enacted in 2003 at a time when the country had transitioned from the 14-year-old presidency of the late President Daniel Arap Moi. Prior to that transition, towards the end of his tenure, the said president showed signs of wanting to retain significant political power by appointing a successor while retaining his seat as the chairperson of his political party which position would have been a threat to democracy and which was not welcome by majority of Kenyans who eventually chose another candidate as president. The legislators therefore reflected at the will of the Kenyan people which was to protect democracy and prevent the former president from exerting undue influence in active politics. Thus, the 1st interested party affirmed that the Act sought to encourage a culture of peaceful transitions of power promoting the idea that retirement should equate to a complete departure from active political life which was crucial in fostering trust in the democratic process. Further, the purpose and effect of the impugned section are constitutional and effectively balance the rights of individuals who hold the title of retired presidents on one hand and democracy on the other.** 2. The 1st interested party asserted that the nature of rights contained in Articles 27, 26 and 38 are not non derogable rights in terms of Article 25 of the Constitution and are subjected to the limitation clause in Article 24**. They further argued that the legislators intended to uphold the office of the retired president as a constitutional institution ensuring that it serves the country and the people impartially. The president is a symbol of national unity under Article 131(1)(e) of the Constitution and the provision aims to ensure that it remains so even after the retirement of a president.** Further, Section 6(1) of the Act does not provide an absolute bar to a retired president’s political rights as it sets the limits solely to the extent of holding an office in a political party meaning that he can exercise all his other political rights. During their term as presidents, they retain their positions as heads of their respective political parties. Thus it would be rational and in line with the concept of retirement that they also cease holding office in the political party. Further, the retired presidents retain the right to participate in political discourse, contribute to party strategies and support political movements in various capacities thus preserving their fundamental rights under Article 38. 1. The 1st interested party submitted that the limitation is reasonable given that partisan political movements are offered their own forms of compensation derived from **Section 23 of the Political Parties Act** which creates a fund that is primarily derived from such funds not being less than 0.3% of the National Government Revenue and whose purpose is among other things to cater for administrative and staff expenses. Retired presidents who do not wish to effectively retire and serve the country and the people impartially have the choice to waive their retirement benefits provided under the Act and actively participate in partisan political movements that offer their own generous forms of compensation that come from the National Government. Therefore allowing the retired president to benefit from both Acts would be disproportionately burdensome to the successor government and generations of Kenyans that have to bear the burden of underwriting the costs of a lifetime benefit when the retired president is still active in politics. 2. On the argument that Section 6 of the Act violates **Article 27 of the Constitution**, the 1st interested party cited the case of **Coalition for Reforms and Democracy (CORD) vs Attorney General; International Institute for Legislative Affairs & Katiba Institute (Interested Parties) Petition 476 of 2015 [2019] KEHC 10892 (KLR) (Constitutional and Human Rights) (30 May 2019) (Judgment)** the court in its analysis stated that the guiding principles for cases of this nature were to establish whether the impugned provision differentiates between different persons; to establish whether that differentiation amounts to discrimination and to determine whether the discrimination is unfair. 1. Further the court in **Jacqueline Okeyo Manani & 5 Others vs Attorney General & Another [2018] eKLR** held that *“****Discrimination as seen from the definitions, will be deemed to arise where equal classes of people are subjected to different treatment, without objective or reasonable justification or proportionality between the aim sought and the means employed to achieve that aim****.”* 2. The 1st interested party argued that the provision is not discriminatory since it does not differentiate between similarly situated individuals or groups in a way that would violate the constitutional right to equality under **Article 27 of the Constitution**. The impugned section specifically applies to retired presidents which is a unique category of individuals. It targets the specific powers and privileges associated with being a retired president which is not a common position in society. Therefore, it is not a general restriction on citizens, but a limitation on the post presidential political activities of a specific ground due to the nature of the office they held. They further submit that the differentiation that exists is reasonable and justified based on valid, legitimate and rational grounds. 3. **The 1st interested party submitted that the impugned section is a constitutional safeguard designed to balance the power dynamics in the political sphere.** The fact that the said group is subject to different rule does not make it discriminatory in the constitutional sense as it is based on a rational and objective justification. Thus, the petitioners have failed to demonstrate discrimination under Article 27. Reliance was placed in the case of **Law Society of Kenya vs Attorney General & National Assembly [2016] eKLR** where the court held that discrimination which is disallowed by the constitution is that which is unjustifiable and without any rational basis. It is always the duty of the party who alleges discrimination to demonstrate that indeed there is unreasonable differential treatment accorded to persons of the same class or category to amount to real discrimination. At the same time it must be clear to all those who move the court alleging discrimination, that it is not every differentiation that amounts to discrimination. It is important, if not necessary to identify the criteria that separates legitimate differentiation from constitutionally impermissible differentiation. 1. The 1st interested party submitted that the petitioners have misinterpreted Section 6 of the Act and have also failed to demonstrate how the rights of retired presidents have been or are being violated and the damages and losses arising out of the alleged violation. Their arguments and submissions rely solely on citing constitutional provisions without showing specific instances of violation. Reliance was placed in the case of **Leonard Otieno vs Airtel Kenya Limited [2018] eKLR** where the court held:- **It is a fundamental principle in law that a litigant bears the burden (or onus) of proof in respect of the propositions that he asserts to prove his claim. Decisions on violation of constitutional rights should not and must not be made in a factual vacuum. To attempt to do so would trivialize the constitution and inevitably result in ill considered opinions. The presentation of clear evidence in support of violation of constitutional right is not, a mere technicality; rather it is essential to a proper consideration of constitutional issues. Decisions on violation of constitutional rights cannot be based upon the unsupported hypotheses.** 1. Further reliance was placed in **Josphat Koli Nanok & Another vs Ethics and Anti Corruption Commission (2018) eKLR** where the court stated:- **Moreover, I think it trivializes the constitution, its values and principles when empty allegation of infringement are made. A petitioner who cites a violation of the constitution must by cogent evidence relate alleged breaches with real concrete and direct loss, damage or injury arising out of the violation. It does not help to allege violation drop conceptual abstract and interpretation to fit some artifice textbook arguments of the nature and extent of constitutional principles. The violation must be real with real implications on real lives of the people.** 1. The 1st interested party argued that legislative enactments including Section 6 of the Act enjoy the presumption of legality and constitutionality and it is upon the party alleging unconstitutionality to substantiate their claim and provide solid evidence and arguments to back their claim which the petitioners have failed to do. **Analysis and Determination** 1. Upon careful perusal of the pleadings and submissions by the parties herein, it is incumbent to this Court that there only two **core issues** that require determination by this Court, namely: 2. *Whether Section 6 of the Presidential Retirement Benefits Act is inconsistent with the Constitution.* 3. *Whether the petitioners are entitled to the orders sought.* **Whether Section 6 of the Presidential Retirement Benefits Act is inconsistent with the Constitution** 1. A determination of this question calls upon the Court to engage in the exercise of constitutional interpretation by assessing the impugned statutory provision against the dictates of the Constitution. It will therefore be imperative to run through the constitutional interpretation principles that would be relevant in this discourse. Of importance is the Constitution itself which provides a guide on how it shall be interpreted. Article 259 (1) provides thus: **259. (1) The Constitution shall be interpreted in a manner that:** 1. **promotes its purposes, values and principles** 2. **advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights** 3. **permits the development of the law; and** 4. **contributes to good governance.** 1. The Supreme Court in **the Matter of the Interim Independent Electoral Commission [2011] KESC 1 (KLR)** underscored the following approach of constitutional interpretation: ***“…The rules of constitutional interpretation do not favour formalistic or positivistic approaches (Articles 20(4) and 259(1)). The Constitution has incorporated non-legal considerations, which we must take into account, in exercising our jurisdiction. The Constitution has a most modern Bill of Rights, that envisions a human-rights based, and social-justice oriented State and society. The values and principles articulated in the Preamble, in Article 10, in Chapter 6, and in various other provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. Article 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by the Courts.*** ***In Article 259(1) the Constitution lays down the rule of interpretation as follows: “This Constitution shall be interpreted in a manner that – (a) promotes its purposes, values and principles; (b) advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance.” Article 20 requires the Courts, in interpreting the Bill of Rights, to promote: (a) the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and (b) the spirit, purport and objects of the Bill of Rights….*** ***Article 10 states clearly the values and principles of the Constitution, and these include: patriotism, national unity, sharing and devolution of power, the rule of law, democracy, participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized, good governance, integrity, transparency and accountability, and sustainable development.*** ***It is for these reasons that the Supreme Court, while observing the importance of certainty of the law, has to nurture the development of the law in a manner that eschews formalism, in favour of the purposive approach. Interpreting the Constitution, is a task distinct from interpreting the ordinary law. The very style of the Constitution compels a broad and flexible approach to interpretation.”*** 1. Equally, the Court of Appeal in **Center for Rights Education and Awareness & Another v John Harun Mwau & 6 others [2012] KECA 249 (KLR)** determined as follows: * 1. **It should be interpreted in a manner that promotes its purposes, values and principles; advances rule of law, human rights and fundamental freedoms and permits development of the law and contributes to good governance as provided by Article 259.** 2. **The spirit and tenor of the Constitution must preside and permeate the process of judicial interpretation and judicial discretion.** 3. **It must be interpreted broadly, liberally and purposively so as to avoid “the austerity of tabulated legalism.”** 4. **The entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other as to effectuate the great purpose of the instrument (the harmonization principle).”** 2. On the other hand, there are a number of well-established principles employed in the interpretation of an Act of Parliament. The first is that there is a general presumption that every Act of Parliament is constitutional. This principle was captured by the Court of Appeal of Tanzania in **Ndyanabo vs. Attorney General [2001] EA 495** being a restatement of the law in the English case of **Pearlberg vs. Varty [1972] 1 WLR 534** that: **Until the contrary is proved, legislation is presumed to be constitutional. It is a sound principle of constitutional construction that, if possible, legislation should receive such a construction as will make it operative and not inoperative** 1. Secondly, in **R vs Big M Drug Mart Ltd 1985 CR 295** as cited with approval in the case of **Geoffrey Andare v Attorney General & 2 others [2016] KEHC 7592 (KLR)** the Court underscored as follows: **Both purpose and effect are relevant in determining constitutionality, either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of legislation, object and its ultimate impact are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in assessing the legislation’s object and thus the validity.** 1. This principle was also applied by the Constitutional Court of Uganda in **Olum and Another vs Attorney General [2002] 2 EA**, where it was noted that: **To determine the constitutionality of a section of a statute or Act of Parliament, the court has to consider the purpose and effect of the impugned statute or section thereof. If its purpose does not infringe a right guaranteed by the constitution, the court has to go further and examine the effect of the implementation. If either its purpose or the effect of its implementation infringes a right guaranteed by the constitution, the impugned statute or section thereof shall be declared unconstitutional…** 1. Furthermore, the Court of Appeal in **County Government of Nyeri & another vs Cecilia Wangechi Ndungu [2015] KECA 1011 (KLR)** stated as follows: **The object of all interpretation of a written instrument is to discover the intention of its author as expressed in the instrument. Therefore, the object in construing an Act is to ascertain the intention of Parliament as expressed in the Act, considering it as a whole in its context……** 1. Furthermore, in the persuasive authority of **U.S. vs Butler 297 U.S. 1 (1936)** as cited with approval in **Kenya National Commission on Human Rights v Attorney General & another [2015] KEHC 7634 (KLR)** the Court observed as follows: **When an Act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the government has only one duty; to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.** 1. Furthermore, in **Council of County Governors v Attorney General & another [2017] KEHC 6395 (KLR)** the Court highlighted another principle as follows: **“A law which violates the constitution is void. In such cases, the Court has to examine as to what factors the court should weigh while determining the constitutionality of a statute. The court should examine the provisions of the statute in light of the provisions of the Constitution. When the constitutionality of a law is challenged on grounds that it infringes the constitution, what the court has to consider is the “direct and inevitable effect” of such law. Further, in order to examine the constitutionality or otherwise of statute or any of its provisions, one of the most relevant consideration is the object and reasons as well as legislative history of the statute. This would help the court in arriving at a more objective and justifiable approach.** **Thus, the history behind the enactment in question should be borne in mind. Thus any interpretation of these provisions should bear in mind the history, the desires and aspirations of the Kenyans on whom the Constitution vests the sovereign power, bearing in mind that sovereign power is only delegated to the institutions which exercise it and that the said institutions which include Parliament, the national executive and executive structures in the county governments, and the judiciary must exercise this power only in accordance with the Constitution.”** 1. Furthermore, the presumption of constitutionality of a statute is equally an important factor that must be taken into account when any challenge to a statute is made. The institution of Parliament being vested with the law-making power under Article 94 and 95 of the Constitution is presumed to have acted within its powers and the law is considered valid until unconstitutionality is established by the Petitioner. That position was espoused in the Indian case of **Hamdard Dawakhana & Anor vs The Union of India (Uoi) & Others AIR1960 SC 554, 1960 Cri. LJ 671 (1960) IIMLJ 1 SC 1960, 2 SCR 671** where it held: - **In examining the constitutionality of a statute it must be assumed that the legislature understands and appreciates the needs of the people and the laws it enacts are directed to problems which are made manifest by experience and the elected representatives in a legislature and it enacts laws which they consider to be reasonable for purposes for which they were enacted. Presumption is therefore in favour of the constitutionality.** **That in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, the history of the times and may assume every state of facts which can be conceived as existing, at the time of legislation.** 1. What their Lordships underscored by way of summary is that Courts must accord due weight and deference to Parliament by refraining from unnecessary intrusion that amounts to curtailing Parliament’s law-making authority indicating that principle l rests on the following major assumptions: 2. *that the legislature understands and appreciates the needs of the people* 3. *that the laws enacted by the legislature are directed at problems that have become evident through experience.* 4. *that elected representatives enact laws they themselves regard reasonable for the purpose for which those laws are intended to serve* 5. *that accordingly, there is presumption in favour of constitutionality of the statute.* 6. An important additional holding by the Court was that in order to sustain the principle of constitutionality, a Court may take into account common knowledge of the history of the times, and may assume any state of facts that can reasonably be conceived as existing at the time of legislation. 1. **Section 6 of the Presidential Retirement Benefits Act** which the Petitioners challenge states as follows: 2. **A retired president shall not hold office in any political party for more than six months after ceasing to hold office as president.** 3. **A retired president shall be expected to play a consultative and advisory role to the government and the people of Kenya.** 4. **A retired president may be requested by the government to perform specific official functions and shall be paid a reasonable allowance in respect of such official functions.** 5. The petitioners contended that **Section 6 of the Presidential Retirement Benefits Act** is inconsistent with the constitution as the provision discriminates against retired presidents by imposing restrictions on their right of association (Article 36) as well as political participation (Article 38) that are not applicable to other citizens. That by restricting the ability of retired presidents to hold office in political parties, the provision unduly limits their freedom to associate freely. Further, the impugned law curtails the political rights of retired presidents thereby denying them the right to participate in the political process fully and upon exiting office, retired presidents do not cease from being citizens of Kenya and thereby limiting access to some rights reserved to citizens. Further **Section 6 of the Presidential Retirement Benefits Act** limits the period of retired presidents to hold office in a political party to a period of six months after leaving office. The petitioners argued that that restriction is discriminatory and violates the principle of equality before the law as it subjects the presidents to a different standard than other citizens, without a justifiable basis. The limit on political participation infringes upon the freedom of association guaranteed under Article 36 of the Constitution. 1. **Article 36 of the Constitution** provides for freedom of Association. It states in Article 36 (1) that every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind. **Article 38** **of the Constitution** safeguards political rights by providing that 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* *c) to campaign for a political party.* 1. **Article 38 (2)** gives every citizen right to vie for office of any political party to which the citizen is a member. 2. The Petitioners argue that the manner in which section 6 of the Presidential Benefit Act is couched violates the above rights in relation to the retired President and is also discriminatory which is against Article 27 (1) by denying the retired President equal protection and benefit of the law to fully exercise his political rights. 3. A reading of Section 6 (1) is clear, as was strongly submitted by the Respondents and the Interested parties, it does not forbid the retired President from being a member of a political party, what it restricts is taking up a leadership role in the political party for more than six months after retiring. It states: **‘A retired president shall not hold office in any political party for more than six months after ceasing to hold office as president.’** 1. Article 36 and 37, including Article 27 upon which the Petition is premised are not absolute and may be limited by law to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom taking into account the nature of the right or freedom, importance of the purpose of limitation and the limitation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose. 2. **The first question is whether Section 6 Presidential Retirement Benefits Act is discriminative as against a retired president from restricting such retired president from holding office in a political party?** Article 27 of the Constitution as established by judicial precedents, it provides equal benefit and protection against unequal treatment of persons who are similarly situated, such that, such that differential treatment may actually be applied between different classes where this can be rationally justified. 3. This was the holding of the Court in **Jacqueline Okeyo Manani & 5 Others vs Attorney General & Another [2018] eKLR** in which it was held that it **“Discrimination…. will be deemed to arise where equal classes of people are subjected to different treatment, without objective or reasonable justification or proportionality between the aim sought and the means employed to achieve that aim.”** 1. In the instant case, the Court finds the Petitioners comparison of a retired President as against another ordinary citizen to be improper comparator and therefore untenable. The former President falls in a completely different category. A retired President belongs to a special constitutional category of citizens that enjoys constitutionally sanctioned benefits as a person who has held the highest office in the land. 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. Differential treatment applied between the retired President and other citizens in my considered view, does not amount to unfair discrimination taking into account the circumstances. 2. 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. Looking at the historical facts about the provision, one sees that it was not arbitrary. 3. The 1st Interested Party took this Court down the memory lane and to the time when the Act was enacted in 2003. According to the 1st Interested party, it was a time when the country had transitioned from the 24-year-old presidency of the late President Daniel Arap Moi. Towards the end of his tenure, the late President Moi showed signs of wanting to retain significant political power by appointing a successor while retaining his seat as the Chairperson of his political party, which in essence would have meant ruling by proxy. 1. The then legislature saw this as a real threat to nascent democracy and equally many Kenyans were equally unhappy with such a possibility. Parliament thus included this restriction when it enacted the Act which resonated with the Kenyan people to protect democracy by restricting the influence of the former President after exit to prevent him from ruling by proxy. 2. This historical fact, eloquently submitted by the 1st interested party cannot be ignored when considering the constitutionality of Section 6 (1) of the Presidential Benefits Act. History has a tendency of repeating itself. This clause is not an idle provision that was merely sneaked in without any justification, it was borne out of bad experience whereby a former President wanted to entrench his hold on power beyond his exit, albeit indirectly. 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 thereby muffling Kenya’s fragile democracy. I do not think that this provision has outlived its usefulness, that safeguard it provided remains necessary today as it was then. I find that the provision meets the proportionality threshold envisaged under Article 24 of the Constitution. 3. This finding is sufficient to dispose of this Petition. This Court finds that the Petition lacks merit and dismisses the same. 4. As this is public interest litigation, I shall not make any orders as to costs. ***DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF SEPTEMBER, 2026.*** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L N MUGAMBI** **JUDGE**