Law raises storm over Kibaki, Raila and Kalonzo positions
By Gakuu Mathenge and Stephen Makabila
Interpretation and implementation of the new Constitution is the next challenge after promulgation, and a provision banning public officers from holding political party offices is already causing divisions.
The new Constitution says State officers should not hold positions in political parties. State officers are defined to include President, Deputy President, Cabinet ministers, MPs, governors, senators, and others.
But lawyers and political leaders cannot agree on whether President Kibaki, Prime Minister Raila Odinga, Vice-President Kalonzo Musyoka, ministers and MPs should quit their positions in political parties.
Some now say it may have to be left to courts to settle the matter that, if applied according to one version of interpretation, Kibaki, Kalonzo and Raila should resign their positions as party leaders of PNU, ODM-Kenya and ODM.
Currently, ministers, assistant ministers, MPs, parastatal chiefs, and board members of State corporations also double up as officials of political parties.
However, Article 77 (2) on Restrictions on Activities of State Officers says: "Any appointed State Officer shall not hold office in a political party." Article 260 (Interpretations) says State Officer include President, Deputy President, Cabinet Secretary, MP, members of commissions, while State officer means a person holding a public office.
But Narc-Kenya leader Martha Karua and Safina leader Paul Muite say MPs being elected officers are not subject to Article 77 (2).
"Article 77 (2) talks about appointed State officials. MPs, President and Prime Minister are not appointed and accordingly not affected," says Muite.
But ODM Chief Whip Jakoyo Midiwo says the matter is tricky and needs further debate.
"In my view, ministers and assistant ministers are appointed, not elected, and therefore may be affected by Article 77 (22). Nominated MPs and councillors are also not elected. But I’m on the side of those who feel the status quo should hold until the 2012 General Election," Midiwo says.
But Justice and Constitutional Affairs Minister Mutula Kilonzo last week said he would quit his position as the ODM-Kenya secretary-general when the new law comes into effect. Others, he said, should also get ready to hand over their party offices.
But East African Law Society Secretary James Mwamu cautions against what he terms "misinterpretation of the new Constitution".
Mwamu says no leader should resign from his party position until amendments are made to the Political Parties Act.
Saboti MP Eugene Wamalwa argues the new law does not lock out ordinary MPs from assuming party responsibilities.
"MPs are free to head political parties because they are elected by the people unlike those serving in Government who are presidential appointees," notes Wamalwa.
Kanu Organising Secretary JB Muturi, a former senior magistrate, says many lawyers seemed shocked by the article since not many appreciated its import.
"If the Constitution wanted MPs to continue being party officials, it would have provided for it. It is semantics to talk about ‘appointed’ and ‘elected," he explains.
He adds the Constitution made exemptions where necessary, but not in State office holders doubling up as party officials.
Article 99 a person is disqualified from being elected a Member of Parliament if such a person is a State officer or other public officer, other than Member of Parliament."
"It is clear where exemptions are necessary, they have been provided. In this case, if one is already an MP, one is qualified to be elected to Parliament, so incumbents are covered. But there is no exemption for an MP, minister, President and Deputy President to hold political party office," notes Muturi.
CoE member, Otiende Amolo, says resignation of ministers and MPs from parties may destabilise the Grand Coalition.
"Some provisions come to effect after 2012, when Cabinet ministers cease to be MPs. If applied now, it would have implications for the Grand Coalition because the Prime Minister is the leader of the Majority Party in Parliament, according to the National Accord," Otiende said, during a TV show.
But Muturi disagrees: "The new Constitution has liberated Kibaki and Raila from the tyranny of their parties. They shall continue as President and PM until 2012. They do not need implementation commission for the two to give up their party positions."
Former Kanu Deputy Secretary General and Ntonyiri MP, Maoka Maore, says: "It is becoming apparent what the authors of Article 77 (2) intended to say is not what they put in the document. The chairman of the political parties liaison committee of the Independent Interim Election Commission (IIEC) and former Mathira MP, James Gachagua, explains getting MPs, senators, and governors to resign party positions will be hard to implement.
"They sell their manifestos though parties. How do you convince a politician to abandon the vehicle to political office?" Poses the GNU secretary general, who has launched campaign to become Nyeri County governor.
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