IEBC barred from disqualifying public servants

Independent Electoral and Boundaries Commission (IEBC) Chairman Wafula Chebukati (centre) Chief Executive Officer Ezra Chiloba(right) and commissioner Consolata Nkatha Bucha during a press brief at the IEBC offices in Nairobi. Photo: FILE/STANDARD

The electoral agency has been temporarily barred from disqualifying aspirants for not quitting public office six months before the polls.

Justice Njagi Marete suspended a directive by Chief of Staff and Head of Public Service dated December 1, 2016, which required public servants seeking elective positions to vacate office on or before February 7.

The petitioner, Erick Cheruiyot, moved to the Employment and Labour Relations Court in Kericho under a certificate of urgency on January 16 to challenge the order.

The order means the Independent Electoral and Boundaries Commission cannot disqualify public servants seeking public office on grounds that they did not resign six months prior to the August polls.

In the petition, Mr Cheruiyot argued that section 43(5) and (6) of the Elections Act 2011 discriminates against public servants with political ambitions as it targets them for contract termination.

He further stated that the same sections have accorded current members of Parliament, members of county assemblies and governors undue advantage as they will continue holding public office until the elections are held.

Electoral process

Cheruiyot stated that the election legislation introduces a threshold in participation in the electoral process that is not contemplated under Article 38 of the Constitution, thereby interfering with free and fair elections based on universal suffrage.

He added that by enacting the legislation, Parliament overstepped its mandate by interfering with the constitutional mandate of reviewing and making recommendations to the national government in respect of condition of service, code of conduct and qualifications for offices in the public service pursuant to article 234 of the Constitution.

Cheruiyot further argued that the legislation deprives public officers a source of income for six months while MPs, MCAs and governors continue being in employment, thereby making the political process and competition unfair.

Justice Marete certified the application as urgent and will be heard exparte in the first instance.

"That pending hearing and determination of this application, interim orders be and are hereby issued restraining the respondents by themselves, servants, agents, employees, assigns, proxies and or representatives from disqualifying public servants of the second respondents and other public entities and establishments from the next General Election on grounds of not vacating public office six months to the date of elections," he said.

Justice Marete awarded the respondents three days to file their responses. The application will be heard on February 6.