MCAs eyeing MP seats have until April 9 to resign

IEBC Chairman Wafula Chebukati.[Kipsang Joseph, Standard]

Members of county assemblies seeking parliamentary seats have two months to resign, the Independent Electoral and Boundaries Commission has said. The electoral commission moved to clear the air over the fate of ward reps pursuing higher office, directing that they should continue enjoying tenure of office until April 9, when they are expected to present their nomination papers to IEBC.

“...The commission wishes to clarify that according to Article 99 (2)(d) of the Constitution, as read together with Section 43 (5) and (6) of the Elections Act, MCAs who wish to contest as Members of Parliament should not resign by February 9 but should resign before submitting their nomination papers to returning officers to contest as MP,” said IEBC chairman Wafula Chebukati.

According to IEBC elections calendar released last year, party primaries will be conducted between April 16 and 22. Names of candidates to participate in party primaries must have been submitted by April 9.

The announcement by Mr Chebukati was in reaction to confusion created by a circular issued by the Head of Public Service Joseph Kinyua last month which directed all civil servants seeking elective seats to resign six months to the August 9 polls. This required civil servants to vacate office by yesterday.

Consequently, political parties such as Deputy President William Ruto’s UDA and National Assembly Speaker Justin Muturi’s Democratic Party of Kenya urged MCAs to resign in line with the directive. UDA has since withdrawn the notice to members.

Chebukati explained that the matter in question had been canvassed in court under Petition No. E369 of 2020 Kennedy Irungu Ngodi & Martin Njuguna Ngugi vs Mary Waithera Njoroge & 11 others, “where the Court on May 4, 2021 held that a sitting president, member of Parliament, governor or member of county assembly who intends to vie for any position in the next General Election, upon the expiry of the current electoral cycle, need not resign before that General Election.”

The issue then came up on October 7, 2020, in the High Court in a petition involving Clement Kungu Waibara vs Ann Wanjiku Kibe and IEBC, where the court held that the election of Ann Wanjiku Kibe - who contested for the position of MP while she was a sitting MCA - was in violation of Article 99(2) (a) and (d) of the Constitution.   

“On this premise, the Court proceeded to declare the seat of the Gatundu North Constituency vacant. However, Wanjiku moved to the Court of Appeal challenging the judgment of the High Court and obtained orders of stay of execution,” added Chebukati.

The Court of Appeal heard the matter and judgement is coming up on March 18. The IEBC chairman promised that they will give further advice once the Court of Appeal delivers the said judgment.