Does the law permit one to vie for presidency and MP?

Koki Muli

Can a presidential candidate vie for any other position under the new Constitution?

Article 137 dealing with the qualifications and disqualifications for election of the president provides that a person is qualified to vie for president if one is a citizen of Kenya by birth, qualifies to vie as a Member of Parliament, is nominated by a political party or is an independent candidate and is nominated by at least 2,000 voters from each of more than half of the counties.

On the other hand, a presidential candidate is disqualified if one owes allegiance to a foreign country or is a citizen but not by birth, is a public officer or is acting in any State or other public office. The president, deputy president and members of Senate or National Assembly are the only State or public officers exempted from this rule. This essentially means that a sitting president or his deputy and MP are qualified to vie for president.

During the deliberations on the constitutional review led by the Committee of Experts (CoE), most submissions had proposed that if a person vies for the position of president, he should be disqualified from vying for any other position.

However, when this provision went to committee of Parliament for review and further discussions, it was qualified to allow presidential candidates to vie for the post of MP.

The initial aim of this provision was to ensure only serious presidential candidates vie and not just contenders to increase their chances of winning a parliamentary seat.

In addition, the new Constitution has made it harder for a presidential candidate to win an election unless that candidate has national support of more than half of the voting population. One is elected as president if he gets more than half of all the votes cast in the election and at least 25 per cent of the votes cast in each of more than half of the counties. If this does not happen, a run off will be held for the first two candidates within 30 days and the one who receives the most votes in the election will be declared president. This will ensure the person elected president of Kenya receives popular and national mandate.

Therefore, the provisions in the new Elections Act, 2011, dealing with the election of the president must comply with the Constitution because it is the supreme law of Kenya and any other law, which contradicts it, is illegal and void.

Article 99 provides that a person is qualified to vie for the position of an MP if they are registered as a voter, satisfy educational, moral and ethical requirements prescribed by the Constitution or by an Act of Parliament and is nominated by a political party or is an independent candidate who is supported, in the case of election to the National Assembly, by at least 1,000 registered voters in the constituency or in the case of election to the Senate by at least 2,000 registered voters in the county.

State officers and public servants who wish to vie for a parliamentary position must resign from their jobs before they declare their interests to vie. Members of county assemblies, people of unsound mind, un-discharged bankrupts, those serving a sentence of more than six months or anyone found (after appeals and reviews) to have misused or abused a State or public office or has violated Chapter Six of the Constitution are all disqualified to vie for a position in the senate or a member of the National Assembly.

The new Constitution fundamentally improves the quality and criteria of leadership and integrity especially in elective positions. We can only hope that IEBC will respect and enforce these provisions to enhance democracy.

The writer is an elections and constitutional law expert and lecturer, Southern Eastern University College