By Stephen Makabila
The High Court has ruled that politicians serving as State officers while holding positions in political parties are in breach of the Constitution.
Given several major parties have ministers holding positions, does the ruling open doors for a shake up in affected outfits just five months to the March 4, 2013 General Election?
Affected ministers had solace in a ruling by former Attorney General Amos Wako, in June last year, who told the Commission for the Implementation of the Constitution (CIC) and the defunct Interim Independent Electoral Commission that ministers holding political party positions were not violating the Constitution.
Wako (now in retirement), had argued that Article 77(2) of the Constitution was never meant to apply to the current Cabinet ministers since their tenure of office is preserved “as is” in the transitional provisions of the new Constitution until after the next General Election.
CIC had then maintained that ministers, assistant ministers and MPs should resign their party posts since they were in breach of the Constitution.
And last week, three judges ruled that it was unconstitutional for State officers to hold party positions. The judges delivered the ruling in a case that had been filed against Deputy Prime Minister Uhuru Kenyatta in 2010 by four Kanu members when he was still Kanu chairman.
Mombasa High Court judges Mary Kasango, Edward Muriithi and Grace Nzioka ruled that a State officer cannot hold a political party position because it was outlawed by the Constitution.
UDM Secretary General Martin Kamwaro, says the focus currently was on political parties preparing for the coming General Election.
“Issues concerning whether the current crop of State officers should hold party positions or not are not the focus because political parties are busy making final touches in preparation of the coming General Election,” added Kamwaro.
The Constitution defines a State officer as one holding the office of the President, Deputy President, Cabinet Secretary, Member of Parliament, the Attorney General and Director of Public Prosecution among others.
Prime Minister Raila Odinga is the ODM party leader, Vice President Kalonzo Musyoka, is the Wiper Democratic Movement (WDM) party leader, while Deputy Prime Ministers Musalia Mudavadi and Uhuru are presidential aspirants for UDF and TNA respectively.