The High Court has heard rival arguments over whether National Assembly Speaker Moses Wetang'ula and Senate Speaker Amason Kingi should be barred from engaging in partisan political activities, with the two Speakers urging the court to throw out the case as premature and politically driven.
Appearing before Justice David Mburu, lawyers representing the Speakers argued that the petition challenging their political involvement was improperly before the High Court because the petitioners had failed to exhaust other dispute resolution mechanisms provided under the Constitution and Parliament's procedures.
Senior Counsel Fred Ngatia Milimo told the court that the dispute ought to have first been presented before institutions such as the Ethics and Anti-Corruption Commission (EACC), Parliament's Powers and Privileges Committee, or addressed through the Standing Orders of the National Assembly and Senate.
"The Constitution requires parties to first exhaust the available legal mechanisms before invoking the jurisdiction of this court," Milimo submitted.
The defence further argued that similar constitutional questions are already pending before the Court of Appeal, including issues touching on whether Speakers of Parliament may simultaneously hold other public offices.
"The best course is for this court to await the determination of the Court of Appeal. A contrary finding would create an embarrassing conflict with the appellate court," Milimo told the judge.
The lawyers also asked the court to disregard newspaper articles attached to the petition, arguing that media reports are inadmissible evidence and cannot support the grant of conservatory orders.
On the merits of the case, the respondents maintained that Wetang'ula and Kingi are elected leaders who enjoy political rights under Article 38 of the Constitution, unlike appointed State officers who are subject to restrictions on political activity.
Milimo argued that barring Wetang'ula, who also serves as Ford Kenya party leader and Chairperson of the Parliamentary Service Commission, from political engagement would unlawfully limit his constitutional rights.
"There is nothing urgent to preserve. This is pure politics. The orders sought are intended to gag the Speakers from engaging with the public and expressing their political views," he submitted.
However, the petitioners opposed the application, insisting that the two Speakers had crossed constitutional boundaries by actively participating in political campaigns.
Lawyer Ian Mutiso argued that the case raises critical constitutional questions on whether the holders of the offices of Speaker are required to remain politically neutral in keeping with the principles of leadership, integrity and separation of powers.
"If they wish to actively engage in partisan politics, they should first resign from office," Mutiso submitted.
Lawyer Abner Mango also defended the conservatory orders, arguing that they are binding unless set aside by the court.
He maintained that allowing the Speakers to continue participating in partisan politics while holding their constitutional offices undermines the doctrine of separation of powers.
Justice David Mburu is expected to issue directions after considering the submissions made by both.
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