Court in 2017 ruled that a requirement for public servants to quit six months to elections unlawful

Monday, July 12th, 2021 01:30 | By
Justice Njagi Marete.

A High Court ruling issued ahead of the 2017 General Election may just give dozens of public servants seeking elective seats in next year’s election a lifeline which will ensure they remain in office beyond the electoral commission’s February ultimatum to resign.

In its March 2017 ruling, the Employment and Labour Relations Court declared a requirement in the Elections Act for civil servants to quit office six months to elections unlawful.

Justice Njagi Marete ruled the requirement for a public officer, who intends to contest an election to resign as ‘unreasonable and unjustifiable in a democratic society’. 

He said civil servants can only resign once they have been nominated by their respective political parties.

“That a declaration be and is hereby issued that Section 43(5) of the Elections Act 2011 is unconstitutional and without any legal basis or force ab initio,” Justice Marete ruled.

He added: “That a declaration be and is hereby issued that unless and until nomination, there is no compelling public interest that demands mandatory resignation of a public officer from public office.”

Two weeks ago, the Independent Electoral and Boundaries Commission (IEBC) asked civil servants seeking posts to resign by February 9th, 2022.

Yesterday, IEBC insisted that the High Court did not nullify the provisions because the matter was specific to individuals, who had petitioned the court. 

“Our lawyers have advised us that the court did not declare that provision unconstitutional null and void and thus the section is still applicable,” IEBC Commissioner Boya Molu said.

Molu argued that Justice Marete’s ruling was a specific relief granted to individuals, who had petitioned the court and it does not apply in the next General Election.

However, Elgeyo Marakwet Senator Kipchumba Murkomen faulted IEBC for the interpretation, accusing the commission of reading the law selectively. 

“In the absence of an appeal, the High Court declaration supercedes that provision. It will be simplistic for a commission of the calibre of IEBC to interpret the ruling in such a way, Murkomen said.

The Senator said its either IEBC or an individual moves to court to seek clarification on the same failure to which civil servants can’t be victimised for having not left office six months before an election.

The ruling, if enforced, may offer a big relief to scores of public servants eying various seats in both county and national governments.

Already Interior Affairs Cabinet Secretary Fred Matiang’i is being touted to go for a political seat as is the case with his Agricultural counterpart Peter Munya, Water CS Sicily Kariuki, Labour’s Simon Chelugui, Energy’s Charles Keter, Treasury’s Ukur Yattani among others.

About six PSs, 11 Chief Administrative Secretaries (CAS), a number of ambassadors, heads of commissions and parastatals and a top police officer have expressed interest in the gubernatorial, senate as well as MP positions. 

Dr Matiang’i, despite his constant denials, is said to be eying a national political role, and has been getting the backing of his colleagues in the cabinet and some elected leaders from his Gusii community, who say he is ripe for the presidency.

His activities especially in his Kisii backyard, body language and the people he has been associating with have left little doubts that after President Uhuru’s exit in 2022, he will be joining active politics, and until recently, he was touted as the possible compromise presidential candidate.

Tight race  

 CSs Munya, James Macharia, Mutahi Kagwe (Health), Ukur Yatani (Treasury), Charles Keter (Energy), Eugene Wamalwa (Devolution), Simon Chelugui (Labour) and Sicily Kariuki (Water) are reportedly eying governorship. 

Tourism CS Najib Balala is on the other hand said to be eyeing the Mombasa Senate seat while Keriako Tobiko (Environment) may go for a parliamentary seat in Kajiado county.  

Wamalwa, Macharia, Keter and Kariuki will be making their first stabs in the gubernatorial race in Trans Nzoia, Murang’a, Kericho and Nyandarua counties respectively.

Interior PS Karanja Kibicho is said to be seeking to unseat Governor Anne Waiguru in Kirinyaga, his Water counterpart Irungu Wairagu hopes to succeed Murang’a Governor Mwangi Wa Iria, Devolution PS Charles Sunkuli is targeting Narok governor seat and Labour’s Nelson Marwa will be going for the Kuria West parliamentary seat.

Former police spokesman Charles Owino has openly expressed interest to succeed Siaya Governor Amoth Rasanga when he retires next year.

Munya’s ally, East African Legislative Assembly (EALA) Mpuru Aburi said the CS will be making a return to the county politics, revealing that he has already hit the ground running “because the clock towards the 2022 elections is ticking fast”.

“Munya is in the race, we (CS’s camp) will be in the campaigns. His ground is good,” Mpuru said.

Yatani, who has been at loggerheads with his successor Mohamed Mahamud over county leadership recently told People Daily that he would seek to recapture the seat he lost, saying, “My options are still open. Definitely your guess (his 2022 candidature) is as good as mine.”

In Nyandarua, CS Kariuki has been making regular official tours in the county rattling Governor Francis Kimemia and although she is yet to make her ambitions public, leaders and opinion shapers have continued to urge her to declare her stand even as the governor accuse her of using State resources to launch her bid to dethrone him in 2022.

Contacted, Kariuki said it was too early to discuss such issues, adding that with the nature of politics, it’s normal for some leaders to link government officer’ in their home area with politics, a culture she said should stop.

CS Keter in a text message told People Daily that “so far, I am not interested”, but a highly placed source close to the minister, said “he has not declared but he will be in the governor race.”

Chelugui did not hide his ambitions, but said will decide at the right time, saying he is currently focused on his mandate and waiting for the outcome of the BBI case in court.

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