Confusion after registered parties list ministers as officials

By Moses Njagih and Peter Opiyo

Questions are being raised over the illegibility of Cabinet ministers to hold political party positions.

Opinion is divided as to whether political outfits that have so far named such Public officers as officials should be de-registered.

A number of political parties that received their registration certificates from the Registrar of Political Parties — in the rush to beat the April 30 deadline for compliance with Political Parties Act — named Cabinet ministers as officials.

But a section of legal experts have faulted this move, saying it contravenes the Constitution that bars State officers from holding positions in political parties. They argue that Article 77(2) of the Constitution is not suspended and thus a political party that has enlisted ministers as officials should be de-registered.

But the Registrar of Political Parties, Ms Lucy Ndung’u, supports the enlisting of Cabinet Ministers as party officials, arguing that as elected MPs, the law allows them to hold the positions.

Ms Ndung’u cites Section 12(2) of the Political Parties Act that allows the President, his deputy, MPs, Governors and their deputies and members of the County Assemblies to hold party positions after the next elections.

"As it is, the ministers are shielded by this section of the Act and it is thus appropriate for them to hold these positions," argues Ndung’u.

But the Centre for Multi-party Democracy (CMD) Chairman Justin Muturi has dismissed Ndung’u’s reasoning arguing that under the current dispensation, ministers are State officers who the Constitution explicitly bars from holding party positions.

Suspended clauses

Muturi argues that Article 77(2) is not among the suspended clauses, and thus its stipulations should be strictly followed and ministers and parastatal officers cease being party officials.

"Only Chapter Seven and Eight and Articles 129 to 155 of the Constitution are suspended, and these do not include that Article. It is captured under Chapter Six and therefore means this law must be enforced strictly," says Muturi.

The former Siakago MP says that irrespective of the stipulations of the Political Parties Act, the Constitution must be viewed as superior and thus be upheld at the expense of any other law.

"It is immaterial what the Act says. The argument people are using is that transitional clauses allow ministers to continue holding these positions, but the truth of the matter is that they are State officers and barred by the Constitution from holding these positions," he says.

Party deregistration

A Nairobi lawyer conversant with electoral matters, Mr Willis Otieno, says it is wrong to have public officers as party officials and that this is a ground enough to deregister a political party.

"The Political Parties Act specifies that a public officer cannot hold office in a political party. Therefore a party can be disqualified if it has a public officer holding an office in the party," says Otieno, the Programme Officer at the Electoral Institute for Sustainable Democracy in Africa.

Otieno says the Political Parties Act has replicated the provisions of the Constitution, which bars political parties from having public officers as officials of the party.

"Section 12 of the Political Parties Act bars public officers from holding party offices and Section 21 provides for deregistration if among others, the party does not adhere to the rule of law," says Otieno.

He notes that the claim that Cabinet ministers can hold positions because they are MPs is "superfluous."

Section 12(2) of the Political Parties Act allows the President, Deputy President, legislator, Governor, Deputy Governor or a member of the county assembly to hold positions in the party.

"You cannot hide under the exemption of an MP because the Act is express on those who are barred from holding positions and they are listed. A Cabinet minister barred from holding a position," says Mr Otieno.

Among the parties with Cabinet ministers holding party positions are ODM, PNU Alliance, PNU, New Ford Kenya and GNU amongst others. ODM has Medical Services minister Prof Anyang’ Nyong’o as secretary general. PNU has Cabinet ministers George Saitoti (Internal Security) and Amos Kimunya (Transport) while PNU Alliance has Kiraitu Murungi (Energy) as an official. New Ford Kenya has Soita Shitanda (Housing) and Eugene Wamalwa (Justice) while GNU has Assistant minister Mwangi Kiunjuri.

Former Law Society of Kenya Chairman Kennedy Akide says it is against the law to have Cabinet ministers holding party positions and that the Registrar needs to review the issuance of certificates of registration of parties that has the public officers as officials of the parties.

"It was wrong for the Registrar of Political Parties to issue Certificates to parties that have Cabinet ministers as officials. The Registrar should review their registration," Mr Akide told The Standard.

Conflict of interest

Critics of the Registrar’s position argue that the spirit of the Constitution was to professionalise political parties and stop the conflict of interest that would be harboured by State officers if they continued holding positions with political parties.

"The logic was to avoid this conflict of interest. In the same way ole Kaparo (Francis) resigned being a State officer, ministers should also quit these party positions," Muturi told The Standard.

But nominated MP, Mohammed Affey called for interpretation of the law in case there is a conflict.

"Where there is ambiguity the Registrar must seek legal interpretation on the matter so that the law is applied correctly," says Affey.

And Kituo Cha Sheria Executive Director, Ms Priscilla Nyokabi says it is not in order to have public officers hold party positions and that the Registrar of Political Parties should not allow this to happen.

"I’ll be very shocked if there is a public officer holding a party position. It would be a potential for challenge by other parties," argued Ms Nyokabi.

She says public officers must relinquish their party posts as required by law to have strong institutions.

Mr Titus Bitok, a law lecturer at Moi University says it is wrong to have Cabinet ministers hold positions in the party and called on the Registrar of Political Parties to suspend Certificates issued to parties that flouted this provision.

"She should suspend the certificates until the rules are complied with, or deregister them completely. Law is supposed to be applied equally and not partially. The ministers and their assistants should step aside," says Bitok.