Public officers eying political seats in the forthcoming General Election must resign by tomorrow, the Court of Appeal has ruled.
The court said provisions of sections 43(5) of the Elections Act (2011) that requires civil servants seeking elective seats to leave office, are not hollow.
The three-judge bench comprising Justices Daniel Musinga, Wanjiru Karanja and Agnes Murgor said the resignation is to enhance requirements for neutrality and impartiality of public officers in elections.
“The importance of political neutrality and impartiality of public officers during the term of employment cannot be overemphasized,” said the second highest court.
The judgment is an endorsement to the directive issued by the electoral agency requiring the civil servants intending to vie for political seats to leave office six months to the date of the General Election,
The judges’ findings stemmed from an appeal file by the Public Service Commission (PSC), Attorney General, Head of Public Service, County Government of Embu and Governor Martin Wambora challenging Labour Court’s decision to declare Section 43(5) of the Elections Act unconstitutional.
The said law provides that “A public officer who intends to contest an election under this Act shall resign from public office at least six months before the date of election.”
In the judgment dated March 29, 2017, Justice Njagi Marete had nullified the law on grounds that it was enacted without public participation.
He had also ruled that public officers can only leave office to participate in the election process upon nomination by their respective political parties.
He issued a permanent injunction restraining the IEBC, PSC, Attorney General and Chief of staff and head of public service from disqualifying public servants from the any general election for not vacating office six months to election date.
But the court of Appeal has set aside the judgment and stated that the Labour Court lacked authority to determine the issue of public participation in relation to the enactment of the Elections Act.
“It is clear in our minds beyond any peradventure that the determination of the issue of public participation in relation to the enactment of the Elections Act, 2011 was not within the jurisdiction of the Employment and Labour Relations Court contemplated both in the Constitution and under section 12 of the Employment and Labour Relations Court Act, 2011,” said the bench.
On Labour court’s finding that the civil servants should resign after conclusion of the nomination process for the General Election, the court observed that a General Election has very strict timelines which political parties, the IEBC, aspirants and other stakeholders must adhere to in order to have free and fair election.
“One of the events that precedes a general election is the nomination of candidates by political parties pursuant to the provisions of section 13 of the Elections Act, 2011. It is only after the nomination process has taken place that the IEBC can proceed to print the necessary ballot papers which contain information on the candidates vying for a particular seat in a particular electoral area,” said the appellate court.
The resignation of public officers at least six months before the general election therefore ensures that the IEBC has sufficient time to undertake its processes and that the calendar of the general election is not disturbed or interrupted unnecessarily.
The court also dismissed arguments that the provisions of section 43(5) and (6) of the Elections Act were discriminatory in the sense that they require all public officers running for elective posts to resign before six months to a general election, save for those holding political offices.
“The political and or the labour rights of the State or public officers seeking to join elective politics are not absolute rights that cannot be limited pursuant to the provisions of Article 25 of the Constitution,” ruled the court.
These rights can be limited by application of relevant laws provided that the limitation is reasonable and justifiable in an open and democratic society based on, inter alia, human dignity, equality, and freedom.
