Governor Wambora appeals court decision on resignation of public officers six months to polls

Embu Governor Martin Wambora has appealed against a decision by the court that declared Section 43 (5) of the Elections Act, 2011 unconstitutional and without any legal basis.

The Act requires public servants wishing to participate in elections to resign from public office at least six months from the date of election

In a judgment delivered in Kericho Employment and Labour Relations Court Justice Njagi Marete issued orders of relief on March 29, 2017 declaring that public officers can only leave office to participate in the election process on nomination for the general election and or conclusion of the nomination process for the said general election.

Justice Marete pronounced the judgment in a case where 8 public officers had moved to court and filed a petition that challenged the constitutionality of sections 43(5) and 43(6) of the Elections Act.

Among the petitioners was former Nakuru Chama cha Mashinani Governor Aspirant Peter Koros, Embu County Secretary Raymond Kinyua, County Executive Committee Member for Youth Empowerment and Sports Emily Thaara and Chief Officer Department of Livestock and Fisheries Monica Cyombua.

The eight had filed the petition seeking among others a declaration that section 43 (5) and (6) of the Elections Act No. 24 of 2011 was discriminatory against public servants with a political ambition as it targeted their contracts of employment for termination and left the rest of the public servants in employment.

The Act according to them accorded sitting Member of Parliament, Member of County Assembly and Governors an undue advantage as they will continue holding office until elections were held whilst the rest of public servants are expected to terminate their contracts of employment.

“Section 43(5) and (6) of the Elections Act No.24 of 2011 deprives public officers a source of income for a whole six (6) months while Members of Parliament, Members of the County Assembly and Governors continue being in employment thereby making the political process and competition unfair,” read part of the application.

Independent Electoral and Boundaries Commission in their reply termed the application as misconceived, mischievous and an abuse of the process of court.

IEBC noted that the Elections Act must be read together with Section 2(1) (c) Political Parties Act, Cap 7B, laws of Kenya as well as Section 23 (3) of the Leadership and Integrity Act. Section 43 (6) which exempts elected state officers.

The six months period provided for resignation by public servants seeking elective office according to IEBC is reasonable bearing in mind election timelines as set out.

Justice Marete in his judgment noted that it is unfair and unjustifiable that the legislative provisions compelled public servants resignation from office.

“The foregoing analysis has come out with a finding of unfair and unjustifiable legislative provisions compelling public servants resignation from office. It has also been found to be discriminatory and a violation of public servants rights under Articles 38 and 41 of the Constitution. I therefore find no compelling public interest for the inaction contemplated under Section 43(5) of the Elections, Act 2011 – resignation,” noted Justice Marete.

The court had issued permanent injunction orders restraining IEBC, Public Service Commission, the Attorney general and the Chief of Staff and Head Public Service by themselves, servants, agents, employees, assignee's, proxies and or representatives from disqualifying public servants from the next or any other general election for not vacating office six months to election date.

Wambora in his appeal said the judge wrongly interpreted the law, misconstrued the decision cited to him and arrived at a wrong decision in law.

He wants the court allow his appeal and have the judgement delivered by Justice Marete be set aside and be substituted with an order dismissing the petition by the eight.