Rights activist Okiya Omtatah has filed a petition seeking to force Deputy President William Ruto and any other public officers seeking to succeed President Uhuru Kenyatta to resign ahead of nominations.
In a case filed under certificate of urgency, Mr Omtatah says any public officer, including a sitting deputy president, a sitting governor, a sitting deputy governor, a sitting MP and a sitting MCA, must vacate office before nomination as a presidential candidate.
He argues that it is discriminatory to require public servants to resign, if they want to seek elective seat as per Section 43(5) & (5A) of the Elections Act, while allowing those elected to continue serving.
“A declaration be and is hereby issued that a sitting president, a sitting deputy president, a sitting governor, and a sitting deputy governor must vacate office before they can be elected to elective positions other than the ones they hold,” he said in the petition.
Mr Omtatah further says sections of Elections Act contradict the provisions of Article 83(3) of the Constitution, which requires that administrative arrangements for the conduct of elections shall be designed to facilitate, and shall not deny, an eligible citizen the right to stand for election.
“Public officers, like other citizens, have freedom of expression, of demonstration and the rights of every Kenyan citizen ―to campaign for a political party or cause and ―to be a candidate for public office. These rights may be limited, but only for a good reason,” he said.
Need not resign before the election
Last year, the High Court ruled that a sitting President, MP, governor or a MCA who intends to vie for any position in the general election, upon the expiry of the current electoral cycle, need not resign before the election.
The judge, however ruled that a state officer, and any other public officer, other than those holding the elective seats, and who intends to vie for any position in the next general election, must resign within 14 days of the issuance of the notice of General Election by the Independent Elections and Boundaries Commission or any time before party nominations are held, whichever comes first.
“It, therefore, means that the President, Members of Parliament, Governors and Members of the County Assemblies do not have to explicitly resign as the law renders them out of office on the second Tuesday of August every fifth year, of course except the President during the temporary incumbency under Article 134 of the Constitution,” the Judge said.
Justice Mrima said a common thread in the term of office for the President, MPs, Governors and MCAs is five years and that, elections to those offices are held on the second Tuesday of August every fifth year.
While an appeal on the matter is pending before the Court of Appeal, several petitions have been filed by civil servants who do not want to resign by February 9, to seek elective seats.
