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Relief for civil servants eying politics as section 43(5) of election act is declared unconstitutional

By Nikko Tanui | March 30th 2017

The Employment and Labour Relations Court has struck down a provision in the Elections Act requiring civil servants seeking elective office to resign from their post six months to the elections Date.

The decision is huge relief to civil servants eyeing political offices who had been forced to relinquish their positions in county and national government in accordance to Section 43 (5) of the Elections Act.

The section states, "A public officer who intends to contest an election under this Act shall resign from public office at least six months before the date of election."

Justice Njagi Marete, sitting in Kericho declared Section 43(5) of the Election Act, 2011 unconstitutional and without any legal basis.

The orders quashes a letter written by Head of Public Service Joseph Kinyua on December1, 2016 which required public servants eyeing elective posts to vacate office on or before February 7.

Justice Marete ruled that the enactment of the provision was not subjected to public participation hence unconstitutional.

"The court finds no evidence that there was public participation in the enactment of Section 43(5) of the Election Act. In the absence of the application of Article 118(1b) due to its ouster by the Sixth schedule, Article 10 (2a) was applicable and allowed a case for public participation," he ruled.

He added, "But in the absence of a demonstration of public participation in the part of the respondents, the court finds that there was no public participation in the enactment of section 43(5) of the Elections Act and therefore declare it unconstitutional."

In the ruling, Justice Marete termed the requirement for public servants to resign from office six months prior the general election as "unjustifiable, most unreasonable, unfair and unacceptable"

"A declaration is hereby issued that under Article 24(1)(2) of the constitution, the requirement that a public officer who intends to contest an election resigns six months before the date of the election is unreasonable and unjustifiable in democratic society," said the judge.

Justice Marete explained that public officers can only leave office to participate in the election process on nomination by their respective political parties or on conclusion of the nomination process.

"A permanent injunction is hereby issued restricting the first to the forth respondent by themselves, agents or employees, assignees and proxies and representatives from disqualifying public servants from the next or any other general election for not vacating office six months prior to the general election," he said.

He further faulted Embu governor Martin Wambora for refusing to rescind resignation of three county officials who had earlier resigned in compliance with the provision of the Elections Act.

Embu County Secretary Raymond Kinyua, Youth Affairs County Executive Committee Emily Thaara Njuki and the Chief Officer Livestock and fisheries Monica Gitari had sought to withdraw their resignation to vie to election posts.

"The rejection of the petitioners' letters revocation their resignation letters dated February 9, is illegal and contravenes their rights as enshrined in Article 27,28,31,37 and 50 of the Constitution," said justice Marete.

The judge blocked the county's Public Service Board from "advertising or filing the posts of the petitioners" until they are nominated to contest the general elections.

"Unless and until nominations, there is no compelling public interest that demands mandatory resignation of public officer from public office," said Njagi.

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