Appellate Court: Civil servants seeking elective seats must resign now

Joseph Kinyua, Head of Public Service. [Wilberforce Okwiri, Standard]

Civil servants seeking elective positions have been dealt a blow after the Court of Appeal overturned a decision that allowed them to stay in office until after party nominations.

The judgment by appellate judges Daniel Musinga, Wanjiru Karanja and Agnes Murgor means that all civil servants eyeing political offices must resign six months before the elections.

Consequently, all civil servants seeking elective positions in upcoming elections must quit office by today or be locked out of the August 9 General Election.

“Provisions which require civil servants and other State officers to resign six months before the election are justifiable and reasonable. We find that the Labour court acted beyond its limit by declaring the provision as unconstitutional and we set aside the decision,” ruled the judges.

They made the decision from an appeal by the Public Service Commission, Attorney General and Head of Public Service challenging a decision by the Labour court allowing civil servant to stay in office until after they are nominated to contest for a seat.

Justice Njagi Marete of the Employment and Labour Court had in March 2017 ruled that Section 43(5) of the Elections Act is unconstitutional and declared that public officers can only leave office to participate in the election after conclusion of party nominations.

Section 43(5) of the Elections Act, 2011, states that a public officer who intends to contest an election shall resign from public office at least six months before the date of the election.

Justice Marete had ruled that the provision was discriminatory and issued a permanent order barring the Independent Electoral and Boundaries Commission (IEBC) from disqualifying any civil servant from seeking an elective position for not vacating office six months to the election date.

The appellate court, however, ruled that Section 43(5) of the Elections Act is valid and in conformity with Articles 99, 180 and 193 of the Constitution which provides that a person seeking to be elected to a political office must not be a State or public officer.

“A reading of the Constitution makes it abundantly clear that for a person to be eligible for election in a general election, the person seeking to be elected must not be a State officer or other public officer except for the categories of persons to whom the exclusion applies,” they ruled.

They stated that the need for public officers to resign is important to promote neutrality during the elections given that the law provides that an appointed State or public officer should not engage in any political activity that may compromise their neutrality.

The judges declared that it will be absurd and impossible for civil servants seeking elective positions to remain in office until the last day of elections since their decisions while in government employ can influence the outcome in their favour.

“The importance of political neutrality and impartiality of public officers during the term of employment cannot be overemphasised. We therefore fully agree on the necessity for public officers desirous of running for elective posts to resign in good time,” they ruled.

The appellate court further held that IEBC is working on strict timelines in preparation for the election, including printing of ballot papers bearing candidates vying for each elective position, which cannot be possible if civil servants do not resign in good time.

Illegally determined

In any event, the judges said the Labour court illegally determined the constitutionality of Section 43(5) of the Elections Act when the judge had no jurisdiction since the dispute did not involve an employee-employer dispute.

“For want of an employee-employer relationship, we find and hold that the Employment and Labour Relations Court arrogated itself jurisdiction that exceeded that conferred upon it by law, which renders its decision a nullity,” said the appellate judges.

They found that the Labour court only has power to determine employment and labour relations disputes and that the judge should have referred the petition to the High Court which was the proper forum to determine constitutionality of the Election Act.

On the Labour court finding that Section 43(5) of the Elections Act was passed without public participation, the appellate court ruled that the requirements for public participation had not come into effect at the time the Act was enacted in 2011.