Do not resign now, Chebukati tells MCAs
Members of County Assemblies (MCAs) wishing to vie for higher elective positions in the August polls have got a reprieve after the national polls agency declared they were not required to resign six months to the elections.
The Independent Electoral and Boundaries Commission (IEBC) in a statement yesterday, said that Ward Reps should have no reason to resign by February 9.
The Wafula Chebukati-led commission said that this was after the High Court on May 4, 2021, exempted a sitting President, his deputy, governors and their deputies, MPs and Ward reps from resigning if they were vying for any other elective seats.
The commission, however, gave a rider that the county lawmakers should resign before submitting their nomination forms to the electoral agency’s Returning Officers.
“The commission wishes to clarify that according to Article 99 (2) (d) of the Constitution as read together with Section 43(5) and (6) of the Elections Act, MCAs who wish to contest as Members of Parliament should not resign by February 9, 2022. However, they should resign before submitting their nomination papers to the Returning Officers to contest as a Member of Parliament,” said Chebukati.
According to Chebukati, the commission will give further direction on the matter after the Court of Appeal delivers its judgement on a pending issue on March 18.
Under the umbrella of the County Assemblies Forum (CAF), the lobby officials have advised members seeking to contest higher seats in the upcoming General Election, to stay put until their five-year term expires.
CAF secretary general and Tinderet Ward Rep Kipkirui Chepkwony argued that the courts had pronounced themselves on the matter and created “a resounding and elaborate jurisprudence”.
“MCAs across the country should remain calm, campaign for the elective seats they desire to occupy during the August elections as they continue to diligently serve the people as MCA. No one should be shaken by such statements,” said Chepkwony.
Eligible to vie
In Kennedy Irungu Ngodi & Another v Mary Waithera Njoroge & 11 others, the trial judge stated that “Article 99 (2) (d) did not disqualify a sitting MCA from contesting for MP”.
However, in case a vacancy arose in the National Assembly and there is a by-election, an MCA must first resign in order to contest for that seat.
Further, in his determination, the judge stated that a sitting President, governor, MP or MCA who intends to vie for any seat in a General Election, next upon the expiry of the current election cycle, need not resign before the election.
High Court judge Justice Anthony Mrima held that all the respondent MPs (former MCAs) were eligible to vie and be elected and that his findings were informed by the provisions of Article 38 and 41 of the Constitution and Section 43(6) of the Elections Act, 2011.
According to Mrima, Article 99 (2) (d) only prevents concurrent occupying of the seat of MP and that of MCA.
In the matter of Stephen Karani & another v the Attorney General & 4 others, Justice John Mativo held that the law does not prohibit an MCA from being nominated to contest a parliamentary seat in a general election.
“It is also clear that the term of office ends on the date of the General Election as per Article 177(4) of the Constitution. However, if the election in question is a by-election which would ordinarily take place before the term of the County Assembly expires, then, such a member would obviously be required to resign.”
National Assembly Speaker Justin Muturi on Tuesday said that a sitting MCA must resign six months to the election date if he or she wishes to vie for the seat of Member of Parliament.
Speaking to People Daily yesterday, County Assemblies Forum (CAF) chairman Ndegwa Wahome termed Muturi’s call as unfortunate.
“The judgments of Justice Mativo and Justice Antony Mrima are very clear on that. An MCA does not require to resign to contest any other seat as the same is discriminative, unconstitutional and in conflict with Article 27 and 38 of the Constitution,” said Wahome.
“The judgement in the Wanjiku Kibe case by Justice Weldon Korir which required MCAs to resign before gunning for other seats was suspended by the Court of Appeal pending the outcome of the appeal thereof.”