A High Court judge has rejected an attempt to stop former presidents, deputy presidents, governors and deputy governors from ever holding another public office, ruling that such a lifetime ban is not provided for in the Constitution.
The decision keeps the door open for former senior leaders to seek elective seats or take up State appointments after completing their constitutional terms.
In the judgment, Justice Roselyne Aburili said courts cannot introduce qualifications or disqualifications that Parliament and the Constitution have not created. She ruled that granting the orders sought would amount to changing the Constitution through the courts instead of interpreting it.
The case was filed by Maxwel George Murungaro, who wanted the court to declare that once presidents, deputy presidents, governors and deputy governors complete the maximum terms allowed under the Constitution, they should permanently leave public service and never hold another State office.
He also asked the court to block the electoral commission from clearing such former leaders to contest future elections and to stop them from being appointed to any public office.
Had the petition succeeded, a number of former governors who have already completed their two constitutional terms and are now serving in the Cabinet, the Senate and parastatals would have been forced out of office and permanently barred from returning to public service.
Murungaro, who described himself as a survivor of the 2007-08 and 2017 post-election violence, argued that the offices of President and Deputy President form one substantive office. He maintained that completing the constitutional term limit should mark the end of a leader's service in any State office.
The Attorney-General opposed the petition, saying the Constitution recognises the offices of President and Deputy President as separate constitutional offices. The State further argued that there is no constitutional or legal provision that permanently prevents former office holders from seeking election or accepting appointments to other public positions.
Justice Aburili agreed with that position, saying any limitation on political rights must be clearly provided for in the Constitution or legislation.
“One of the defining features of the Constitution is the expansion, rather than the restriction, of democratic participation,” the judge said.
She added: “Courts are not at liberty to create additional restrictions where none exist. To do so would not amount to interpretation; it would amount to constitutional amendment by judicial fiat.”
The judge further noted that the Constitution clearly spells out who qualifies and who is disqualified from contesting elective office, leaving no room for courts to introduce new restrictions that were never enacted by the people.
“Had it been intended that Deputy Presidents or Deputy Governors retire permanently from public service upon the expiry of their constitutional tenure, nothing would have been easier than to say so in express terms,” the court said.
It added that the absence of such a provision showed that “no such disability was intended.”
In support of his petition, Murungaro said the violence experienced after the 2007-08 and 2017 elections left him displaced and concerned about the possibility of renewed ethnic tensions ahead of the 2027 General Election. He argued that keeping former holders of the country's highest offices out of public service would promote constitutional governance.
The court, however, found that those concerns could not justify creating constitutional restrictions that do not exist in law and dismissed the petition.