Fate of MPs, senators uncertain after defections to other parties

Deputy President William Ruto with Ndindi Nyoro (Kiharu) and Alice Wahome (Kandar) receives Mary Wamaua (MP, Maragua) back to the Hustler Nation at Kenol Grounds, Maragua, Muranga County. [DPPS, Standard]

If the law was to be followed to the letter, half of the Members of the National Assembly and Senate would already be out of office.

But as it is now, there is uncertainty over party hoppers who have ditched their old outfits ahead of this year’s elections.

A court in Nakuru saved MCAs who have resigned from their sponsoring parties by ruling that they should not lose their seats.

High Court Judge Joel Ngugi ordered speakers of all county assemblies not to declare seats of ward representatives who switched parties vacant, following an application by Kabazi Ward MCA Peter Mbae.

Mbae moved to court to save the MCAs from losing their seats once they resign from their parties.

He said that speakers are required to declare seats vacant on the last date set by the Independent Electoral and Boundaries Commission (IEBC) for verification and closure of party membership registers for purposes of the August 9 elections.

Justice Ngugi referred the petition filed on February 25 to Chief Justice Martha Koome so she can assign judges to hear and determine it.

The focus now moves to more than 170 MPs who have quit their sponsoring parties. So far, about 130 Members of the National Assembly, 25 Woman Reps and 23 senators have left the parties that sponsored them to Parliament.

Yesterday, Homa Bay Senator Moses Kajwang said in a properly functioning multiparty democracy, the MPs and senators should leave their seats.

“If you are playing politics of conscience, the leaders should not continue hanging on to the seats after they switched parties, but in a place where many are practising politics of the stomach, no one will quit,” he said.

According to the Article 103 of the Constitution, a member of a political party, is deemed to have quit his or her party if they form another party, join formation of another outfit, join another political party, in any way or manner publicly advocate the formation of another party, or promote the ideology, interests or policies of another party.

There has been a mass exodus of MPs to new parties and they are actively popularising their ideologies without having formally notified their old outfits.

Independent candidates

“The effect of such resignation is that the Office of a Member of Parliament becomes vacant if, having been elected to Parliament as a member of a political party, the member resigns from that party or is deemed to have resigned from the party as determined in accordance with the legislation contemplated in Clause (2),” states the Act in part.

Those who were independent candidates and have now moved to other parties will equally be affected.  

Legislators allied to the Azimio la Umoja and Kenya Kwanza coalitions will be the most affected by this provision as they scramble to align themselves with respective formations before party primaries start on April 9.

Anne Nderitu, the Registrar of Political Parties, yesterday said their role was to ensure freedom of association.

“Our role is to ensure Kenyans have the freedom to choose which party they want to be in and facilitate their movement to the effect,” said Ms Nderitu.

“Power to take action on who has moved from one party to the other rests with other agencies.”

Already, Jubilee Party is planning to kick out over 100 MPs and a host of MCAs who have joined Deputy President William Ruto’s United Democratic Alliance (UDA).

On Wednesday, the party’s top brass was compiling a list of senators and MPs who have defected.

It will be sent to speakers of both houses so that the seats can be declared vacant.

Most notable include Kiambu Senator Kimani Wamatangi, MPs Moses Kuria (Gatundu South) Rigathi Gachagua (Mathira), Ndindi Nyoro (Kiharu) and Alice Wahome (Kandara).

“…they think we are joking. Wait until I write the letter. They will lose their allowances and it will even be more painful for those who have loans and mortgages,” said Jubilee Party secretary general Jeremiah Kioni.

His sentiments were echoed by party vice chair David Murathe who said that the move to crack the whip on errant lawmakers was informed by their attacks on President Uhuru Kenyatta.

“Once we are done revamping the party, we will turn our focus to the rebels and ensure they are not re-elected,” said Murathe.

The move by Jubilee has however thrown a spanner in the works given that it is impossible to hold by-elections now, with the General Election just a few months away.

According to the law, the IEBC cannot conduct a by-election with less than six months to the General Election. This means the purged MPs will be out in the cold as they campaign to defend their seats.

If they are forced to leave, the MPs will have to forfeit five months’ salaries that comes to over Sh4 million per individual.

Yesterday, IEBC commissioner Irene Masit said the matter was a grey area in law as it is expected that the people should be given an opportunity to realign their choices ahead of the General election.

She said the new constitutional dispensation did away with dissolution of Parliament which previously guided the  time when elected persons were expected to vacate office to participate in the elections.

“Without this provision, it therefore follows that the implication now is that they continue to serve until the next General Election.

“The term of the relevant houses is yet to come to an end...Article 103(1), (f) provides that the Office of a Member of Parliament also becomes vacant at the end of the term of the relevant House,” said Ms Masit.

Article 102 provides that the term of each House of Parliament expires on the date of the General Election.

The IEBC cannot declare a vacancy unless prompted by the ORPP as guided by Section 14 of the Political Parties Act.