The High Court of Kenya has made a significant ruling regarding the Presidential Retirement Benefits Act, declaring certain provisions unconstitutional. The judgment, delivered by Justice Bahati Mwamuye, nullified Section 4 and Section 6 of the Act. Section 4 allowed for the withholding, reduction, or deprivation of retirement benefits payable to a former President under specified circumstances. Section 6 imposed restrictions on a retired President's political participation.
The court's decision was based on the inconsistency of these provisions with Article 151(3) of the Constitution, which protects the retirement benefits of a former President. The Article states that the retirement benefits payable to a former President and former Deputy President shall not be varied to their disadvantage during their lifetime. The case was brought forth by Sheria Mtaani, through lawyer Shadrack Wambui, who argued that Section 4 of the Presidential Retirement Benefits Act is inconsistent with Article 151(3) of the Constitution.
The court not only nullified Section 4 but also declared Section 6 of the Act unconstitutional and void in its entirety. Section 6 imposed restrictions on the political participation of a retired President, which the court found to be inconsistent with constitutionally protected political rights. The judgment emphasized that Parliament remains free to legislate within the constitutional field but cannot exercise statutory power in reliance on a provision that has been declared unconstitutional.
As a result of the ruling, the court issued an order of prohibition restraining the respondents, their servants, agents, or anyone acting under their authority from relying on the unconstitutional portions of Section 4. This order prevents the withholding, reduction, withdrawal, extinguishing, or otherwise disadvantageously varying retirement benefits protected under Article 151(3). A separate prohibition order was issued against the enforcement or application of Section 6.
The court declined to grant an order of certiorari, finding that there was no completed decision before it capable of being quashed. The court clarified that certiorari is a remedy for quashing an existing decision or determination and cannot be used against a decision that has not yet been made. Instead, the court found prohibition to be the appropriate remedy because it operates prospectively to prevent unlawful action.
The court also rejected any suggestion that it should supervise Parliament's proceedings, stressing the importance of separation of powers. A blanket order preventing Parliament from initiating, debating, or considering any motion relating to presidential retirement benefits would go beyond what was necessary and could improperly interfere with Parliament's constitutional mandate.
On Section 4(4), the court clarified that the provision had not been declared unconstitutional. It also noted that Section 7, which qualifies its operation, had not been challenged in the proceedings. The court further declined to grant additional remedies under Articles 43 and 50, holding that the declarations and prohibitory orders already issued were sufficient to address the constitutional violations established.
Key points
- The High Court of Kenya has ruled that key provisions of the Presidential Retirement Benefits Act are unconstitutional.
- The provisions nullified allowed for the withholding of ex-presidents' pensions for political reasons and restricted their political participation.
- The court's decision aims to protect the retirement benefits and political rights of former Presidents.
