The High Court has declared sections of the Presidential Retirement Benefits Act that bar retired presidents from engaging in active politics unconstitutional.
In a judgment delivered on Monday, Justice Bahati Mwamuye ruled that once a president leaves office, he or she ceases to exercise executive authority and becomes a private citizen entitled to the full protection of constitutional rights, including political rights.
The case had been filed by Sheria Mtaani and Shadrack Wambui, who challenged provisions of the law they argued unfairly restricted former presidents from participating in politics.
Court Affirms Political Rights of Former Presidents
In the ruling, Justice Bahati Mwamuye held that a retired president cannot be denied the right to participate in political affairs merely because they once occupied the country’s highest office.
The judge said the presidency is held for a constitutionally defined term and that, upon leaving office, the former holder no longer exercises the coercive powers of the state.
“The person thereafter stands in a fundamentally different constitutional position: he or she is a private citizen,” said Mwamuye
The court declared Sections 4(1), 4(2) and 4(3) of the Presidential Retirement Benefits Act unconstitutional, finding that they imposed limitations on political participation inconsistent with constitutional guarantees of equality, freedom of association and political rights.
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Justice Mwamuye further observed that it was contradictory for Parliament to recognize former presidents as individuals whose experience and counsel could assist government and the public while at the same time preventing them from taking part in the political process.
According to the judge, such restrictions amounted to an unjustifiable curtailment of rights enjoyed by other citizens.
The ruling also prevents the state from withdrawing or withholding retirement benefits from a former president on account of his or her participation in politics.
Judgment Overules Earlier High Court Decision
The decision comes a week after another High Court ruling reached a different conclusion on the political role of retired presidents.
In a judgment delivered on September 14, Justice Lawrence Mugambi upheld Section 6 of the Presidential Retirement Benefits Act, which bars retired presidents from holding leadership positions in political parties for more than six months after leaving office.
The court found that former presidents occupy a unique constitutional position and retain significant political influence that could affect fair political competition.
Justice Mugambi ruled that the restriction did not violate constitutional rights because retired presidents remained free to join political parties and participate in political activities but could not continue occupying formal party leadership positions indefinitely.
The earlier case was filed by Peter Odhiambo Agoro, Paul Muiruri Kiguathi, and Damon Onyango Osawa, who argued that the law discriminates against former presidents by imposing restrictions that do not apply to ordinary citizens.
The court has now dismissed the petition and maintained that the provisions served a legitimate democratic purpose.
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Ruling Comes Amid Debate Over Uhuru’s Political Activities
The latest judgment comes amid the political role of former President Uhuru Kenyatta, whose continued involvement in opposition politics has been the subject of intense public and political discussion.
Government-allied politicians have accused the former president of remaining actively involved in partisan politics and questioned whether such involvement was compatible with retirement benefits provided under the law.
The issue gained renewed prominence after some political leaders pushed for stricter enforcement of laws governing retired presidents and proposed reviewing benefits available to former heads of state who remain politically active.
Justice Mwamuye’s ruling effectively removes legal barriers that prevented retired presidents from openly participating in political affairs and rejects the notion that former heads of state should be treated differently from other citizens solely because of offices they previously held.
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