Civil servants intending to contest various seats in the August 9 General Election have received a brief reprieve after a court suspended a law that requires them to resign by February 9.
Justice Monicah Mbaru of the Employment and Labour Relations Court temporarily suspended the part of the elections law that compels civil servants intending to vie to quit public office at least six months to the polls following a request by Julius Wainaina.
Mr Wainaina argues that the announcement made by the Independent Electoral and Boundaries Commission (IEBC) last year reminding the public officers to quit on or before February 9 is a threat to their political rights. He adds that the directive conflicts with decisions of the High Court on the matter.
His case, which joins others seeking interpretation of when and whether the civil servants must resign, is set for hearing on January 24.
The public officers are confused on whether to comply with the Elections Act, or rely on the 2017 Labour court’s finding that they should resign once they have been nominated by their political parties.
The confusion is also fuelled by another finding of the High Court in 2014 in which Justice Isaac Lenaola ruled that the six months’ resignation period is reasonable and sufficient for a candidate to prepare for an election.
According to the timelines rolled out by IEBC, political parties are expected to have conducted primaries, resolved intra-party disputes and submitted names of their candidates by May 26.
The basis of the IEBC announcement that public officers harbouring political ambitions must resign by February 9 was Section 43(5) of the Elections Act 2011 and a pending case at the Court of Appeal.
On September 27, 2017 the appellate court stayed the Labour court's finding pending determination of an appeal lodged by Embu County and Governor Martin Wambora. Four years later the court is yet to render its decision.
Two other cases have been filed at the High Court (Constitutional and Human Rights Division) seeking an urgent resolution of the issue.
Mr Wainaina, Mr James Ouru Oroko and Mr Eric Omari Wanyama want the court to determine whether Section 43(5) is constitutional and whether it is discriminatory by forcing civil servants to resign as a pre-requisite to vying for elective seats.
Mr Ouru, employed by the Teachers Service Commission as a teacher in Kisii County, says the resignation requirement amounts to limitation of political rights.
“Section 43(5) of the Elections Act as read together with section 43(6) offends Article 27 of the Constitution, which provides that every person is equal before the law and has the right to equal protection and equal benefit of the law,” he says through lawyers Shadrack Wambui and Harun Ndubi.
“This is because Section 43(6) places the President, Deputy President, Member of Parliament, governor, deputy governor and members of a county assembly above all other public servants as it gives them an unfair advantage. They remain in office while still vying,” reads the petition. He adds that demanding other public officers resign is economically constraining as they are deprived of their salaries. Mr Wanyama wants the court to find that the said law is unconstitutional for violating voters’ right to choose leaders.
Yesterday, IEBC informed Justice Anthony Mrima that the dispute is also pending determination at the Court of Appeal.
“The Court of Appeal has been asked to determine whether the judge (Justice Marete) erred for not addressing the questions to finality. The judgment of the Court of Appeal will be binding to this court,” said lawyer Mirriam Ng’ang’a,for IEBC. She urged Justice Mrima to suspend proceedings until the appellate court makes its ruling.
