Why stripping Uhuru of retirement benefits is a tall order – Danstan Omari

The proposal stems from a motion filed by Nandi Senator Samson Cherargei, who is seeking to have Parliament revoke, reallocate or vary the budget relating to Uhuru’s benefits over alleged active involvement in politics.

Uhuru retired in 2022 after serving two terms and currently enjoys perks provided under the Presidential Retirement Benefits Act.

The push for withdrawal of his benefits follows remarks he made during a Jubilee party event in Narok.

“Sasa mimi nikiongea maneno mbili tatu, naambiwa wewe umeretire kwenda nyumbani. Kwanini hawakuambia Moi aritae aende nyumbani? Mimi kwa ukweli siko kwa active politics lakini nina haki ya kutetea chama changu. Mimi hakuna kiti yoyote natafuta lakini mimi ni mwanachama wa Jubilee kwa hali, kwa mali na damu,” Uhuru said in a phone address to Jubilee members.

This translates to: Now when I say a few things, I’m told you have retired and should go home. Why didn’t they tell Moi to retire and go home? The truth is I am not in active politics, but I have a right to defend my party. I am not seeking any position, but I am a member of Jubilee fully—by conviction, by commitment and by loyalty.

His remarks drew criticism from sections of the broad-based wing of government, who interpreted them as a signal of a return to active politics, particularly after he endorsed former Interior CS Fred Matiang'i for the 2027 presidential election.

On Monday, Cherargei formally tabled a motion in the Senate seeking to compel Parliament to review Uhuru’s benefits.

“Any funds recovered from benefits previously accorded to the retired President shall be redirected to serve the interests and welfare of the people of Kenya,” Cherargei states in the motion, adding that the measures should follow an audit report by the Auditor General.

However, speaking on the Court Helicopter channel, Omari argued that stripping Uhuru of his benefits—or varying the budget tied to them—is a tall order on multiple legal grounds.

He pointed to Section 4 of the Presidential Retirement Benefits Act, which outlines the circumstances under which a retired president can lose such benefits.

The law requires that any motion be supported by a two-thirds majority of the House—45 out of the 68 elected and nominated senators.

“Can UDA and the broad-based government marshal two-thirds majority votes? That is a question that will be there,” he said.

The Act provides that benefits may only be withdrawn on grounds such as gross misconduct or wilful violation of the constitution.

“Has President Uhuru violated the constitution? No,” Omari stated.

Section 6(1) further bars a retired President from holding office in a political party for more than six months after leaving office.

“The records do not show that President Uhuru Kenyatta holds any office in Jubilee. Therefore, he has not violated Section 6(1) as provided for as a ground for losing these benefits,” the lawyer said.

The law also allows withdrawal of benefits if a retired President is convicted of an offence and sentenced to at least three years in prison without the option of a fine, or if they hold an office or actively participate in the activities of a political party.

Other grounds include taking up an appointive or elective public office that attracts a government salary, in which case the benefits may be reduced proportionately.

“Is Uhuru under any pay from any government office? No,” Omari posed.

Even if the Senate were to pass the motion, Omari noted that the law remains unclear on the next procedural step.

“In impeachment, after the National Assembly passes by a two-thirds majority, the matter proceeds to the Senate. In this Act, it is not clear whether, once the Senate passes the motion, it goes to the National Assembly,” he said.

He added that courts have previously weighed in on similar attempts involving former President Daniel arap Moi and former Vice President Kalonzo Musyoka.

“The courts have said such a motion must also be taken to the National Assembly. Under the Kibaki regime, they tried to withhold this; it backfired. We are now seeing it back—will it survive?” Omari posed.

“There is a law under Cap 197(a). Parliament has the power to deny Uhuru Kenyatta his benefits; how they will manoeuvre that is a political process. Will anybody run to court to challenge them from doing that? That's another question."