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Omtatah new push for Ruto to quit before August polls

Tuesday, January 11th, 2022 08:00 | By
Activist Okiya Omtatah makes a presentation during a past appearance in count. Photo/PD/Charles mathaai
Activist Okiya Omtatah makes a presentation during a past appearance in count. Photo/PD/Charles mathaai

Deputy President William Ruto may have to resign from his office before the election if a petition filed by activist Okiya Omtatah is upheld by the High Court.

Omtatah in his petition challenges section 43(5), (5A) and (6) of the Elections Act, No. 24 of 2012 saying it is unconstitutional, null and void.

The section provides for a public officer who intends to contest an election to resign from public office at least six months before the date of election.

However, the Act excludes the President, the Deputy President, a Member of Parliament, a county governor, a deputy county governor and a member of a county assembly from resigning.

Omtatah contends that exempting elected officials from vacating office before they can be nominated as presidential candidates is contrary to Article 137(2)(b) of the Constitution.

He argues that allowing a sitting president, a sitting deputy president, a sitting governor, and a sitting deputy governor to vie for elective positions other than the ones they hold is contrary to Articles 99(2)(a) and 193(2)(a) of the  Constitution.

Suspend sections

The activist wants the court to issue an order suspending the sections and restrain the Independent Electoral and Boundaries Commission (IEBC) from in any way enforcing the said sections.

Omtatah argues that whereas a person who can stand for MP can also stand for President, a sitting president cannot be elected as MP. Likewise, whereas a person who can stand for MCA can also stand for governor, a governor cannot be elected as MCA, he contends.

The activist argues that given that the legislatures at both the national and county levels have a fixed term, as  the tenure of an MP or an MCA comes to an end at the beginning of  the day of election, the same does not apply to a president and a governor.

Omtatah argues that the term of a President, his Deputy, the Governor and his Deputy does not end at the beginning of the day of election as they hold office until their newly elected successors assume office.

“So a sitting president and a sitting governor cannot be elected to Parliament or to county assemblies because they would still be in office on the day of election, and until their successors are sworn in,” he claims in court documents.

Omtatah says he is aggrieved that contrary to the above express provisions of the Constitution, the said sections of the Elections Act allows a sitting president, a sitting deputy president, a sitting governor, and a sitting deputy governor to vie for and be elected to elective positions other than the ones they hold.

He also challenges the requirement for Public officers to resign six months to the General elections saying there is no basis in the Constitution for the said requirement.

Public officers resign

“Requiring public officers to resign six months before the date of general elections means that they must do so before they know if they will be able to stand, perhaps even before they have decided to do so,” he argues in court documents.

“I am  aggrieved that Section 43(5) & (5A) of the Elections Act, 2012 does not state the reasons for limiting the ability of public officers to vie for political office and, therefore, it is void for contravening Article 24 of the Constitution,” he says in court documents.

It is his argument that under the Constitution of Kenya, 2010, any public officer, including a sitting deputy president, governor, deputy governor, MP or MCA, cannot be nominated as a presidential candidate.

“They would have to resign before the date of nomination and not the date of election,” he says.

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