As DP Ruto threatens to quit Jubilee, lawyers differ on move’s effects

The NDC is expected to be a politically charged event that could mark the official political break-up of party leader President Kenyatta and his deputy.

Shown the door

The DP, who is Jubilee’s deputy leader, is expected to be shown the door following his association with UDA, on whose ticket he plans to contest the presidency in next year’s election.

He said he had joined hands with other elected leaders to form a formidable party that he expressed optimism will form the next government.

“I want us to unite and form the next government. We have joined hands with your leaders, some of whom were in other parties.

“We will all be under UDA,” the DP said in Nyamira yesterday.

But it emerged that the DP’s ouster from Jubilee would cause a protracted legal battle as to its consequence, particularly to his position as DP.

Dr Wamuti Ndegwa, who teaches law at the University of Nairobi, argues that the DP’s position will remain safe whether he defects to UDA or is expelled from the party.

He contends that the election of the holders of the offices of the President and Deputy President is guided by the Constitution.

“DP Ruto’s position will remain intact because he was elected and assumed office under the provision of the constitution and not a subsidiary legislation,” Dr Ndegwa says.

He notes that while the provisions in the Elections Act or Political Parties Act can be cited as grounds for his removal, such provisions are not binding.

This is because, in his view, they don’t detail the election of the holder of such an office and the provisions in the two laws can’t be used to amend the constitution on the circumstances under which the holder of the office can be removed from office.

According to Article 150 of the constitution, the Deputy President may be removed from office on the grounds of physical or mental incapacity to perform the functions of the office, or impeachment.

Impeachment is on grounds of gross violation of the Constitution or any other law, serious reasons to believe that the DP has committed a crime under national or international law, or gross misconduct.

But Makueni Senator Mutula Kilonzo Jnr counters that the DP is the country’s second-in-command by virtue of the Jubilee ticket. According to him, any attempt to leave the party now, either through defection or expulsion, will mean that he surrenders the DP’s position.

“The seat he is holding belongs to the Jubilee Party and he will surrender it the moment he quits the party. That is the law,” says the senator who is a lawyer.

Winnie Mitulah, a professor of political science, agrees that if the law were to be applied strictly, the DP’s position would be untenable.

“If we were to follow the rule of law, then a lot of things would follow suit because he ceases to be what he is (DP),” Prof Mitulah says.

“If he was honourable enough, he would first resign from the DP post then do the rest so that nobody follows him with law suits or apprehends him in Parliament.”

But she says the way Kenya runs is so convoluted to the extent that Ruto will just join his new party and continue serving as a DP.

“Essentially he has been running that way, the only difference is that he is now planning to move officially,” she says. “But the way Kenya runs, I wouldn’t be shocked to see him quit Jubilee properly and just keep being DP and keep mixing his words.”

The legal aspects

She adds: “It’s very unfortunate for our country because he is likely to do politics and not adhere to the legal aspects of it.”

Section 14 (1) of the Political Parties Act stipulates that a member of a political party who intends to resign from the political party shall give a written notice prior to his resignation.

It adds that the resignation of the member of the political party shall take effect upon receipt of such notice by the political party.

The law prohibits a person from being a member of more than one political party at the same time. But to address situations where a rebel may refuse to voluntarily resign, there are instances in which the law deems a person to have resigned from their political party.

These include forming, joining or publicly advocating for the formation of another political party, actions Jubilee says the DP is publicly demonstrating by his association with UDA.

 Coalition  

The only exemption is whereby a member of a political party is promoting ideals of another in relation to the common objective of a coalition.

This is the reason President Kenyatta’s Jubilee is moving to seal a pre-election coalition agreement with ODM of Mr Raila Odinga.

The ruling party has since signed coalition deals with Kanu and cooperation agreements with Wiper.

Further, the law provides that before expulsion, a member should be allowed to defend themselves through elaborate internal processes with possibility of appeal in the courts all the way up to the Supreme Court.

The Act stipulates: “A member of a political party may only be expelled from that political party if the member has infringed the constitution of the political party and after the member has been afforded a fair opportunity to be heard in accordance with the internal party disputes resolution mechanisms as prescribed in the constitution of the party.”

On termination of membership, the Jubilee party constitution states a member shall cease to be a member if they submit a resignation letter, promotes the activities of any other party, has their membership terminated upon a disciplinary procedure or contravenes the party constitution.

Political Analyst Dismas Mokua also suggests removal of Dr Ruto from the list of Jubilee membership has little consequence to his position as DP.

“His removal will only be of ceremonial value and offer emotional satisfaction for those who are instigating his expulsion,” Mr Mokua argues. .

He argues that under the constitution, it is nearly impossible for party officials who defect from their parties or are expelled to lose their position in public service.

“It will take eternity to remove Mr Ruto from the position because the process contemplated under the law is very elaborate. It will be like eternity in which case we shall have gone to the elections before the process is exhausted,” he concludes.