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Questions abound over delay to appoint Registrar of Political Parties ahead of Kenya's polls

 Lucy Ndung’u, the current holder of the office in acting capacity for four years. CAJ insists that the ‘acting capacity’ by the then Registrar was a temporary measure and part of the transition process to the new regime under the Act; it was never intended to be perpetual. (PHOTO: COURTESY) 

With slightly over a year to the next elections, concern is rising over delay to appoint a substantive Registrar of Political Parties.

Among those questioning the delay is the Commission on Administrative Justice (CAJ), which in an advisory to the President last month, sought to have the position urgently declared vacant to facilitate recruitment of a substantive holder.

In the advisory, CAJ, outlines the importance of the office as the country approaches the August 2017 General Election, saying one cannot hold office in an acting capacity infinitely.

“While we note that the Political Parties Act provided for a transition to the new dispensation, the position of the Registrar was to be filled in accordance with the law without further delay. The ‘acting capacity’ by the then Registrar was a temporary measure and part of the transition process to the new regime under the Act; it was never intended to be perpetual,” says CAJ Chair Dr Otiende Amollo.

Lucy Ndung’u, the current holder of the office, has been acting in the position for more than four years, since enactment of the Political Parties Act. Almost a year ago, Ms Ndung’u was quoted by a local daily saying an appointment to the office would be made “soon”’ and that she had asked the government to start the process of delinking the office from the electoral commission.

At the time, Ndung’u had said there were plans to appoint a registrar and three assistants.

The Political Parties Act stipulates the procedures for appointment of the registrar and assistant registrars. These sections provide that the President will appoint a selection committee with the approval of the National Assembly.

The committee will comprise a chairperson nominated by the president, a nominee by the Law Society of Kenya (LSK) and one person nominated by the Institute of Certified Public Accountants of Kenya (ICPAK). The Association of Professional Societies in East Africa nominates one person, two persons nominated by the political parties represented in the National Assembly and two others by political parties represented in the Senate.

Once the committee has interviewed shortlisted candidates, it forwards the names of three nominees to the President for appointment. The holder of the office and deputies are to be vetted by Parliament before their appointment.

According to Kenya Law Reform Commission’s Apollo Mboya, amendments to the Political Parties Act gave the current holder power to exercise mandate of the office until a substantive appointment is made.

This means that technically, one cannot argue that Ndung’u is in office illegally. One can, however, argue that the transition has gone on for too long and that there is need to make a substantive appointment to the office.

Parliament made changes to the Political Parties Act by removing provisions that required the president to start the process of appointing a new Registrar within 110 days prior to the first general election under a new Constitution. The MPs also removed a section of the law that required the president to appoint the registrar within seven days of receiving Parliament’s approval.

This has been viewed in some quarters as a ‘deliberate attempt’ to give the executive more leeway in determining the holder of the office.

“The legal question here is for how long can there be transition,” says Mboya.

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