At least 20 MPs are staring at job losses following their defection from parties that sponsored them to Parliament. The MPs defected to vie as independent candidates or to join parties popular in their constituencies.
Now experts familiar with law and parliamentary practice say individual political parties or any MP can ask the Speaker to kick the MPs out on strength of their resignation letters.
In a conversation with Sunday Standard, Speaker Justin Muturi insisted that unless an MP writes to the Clerk of the National Assembly (a letter which lands on the Speaker’s desk) specifically saying (s)he had quit a party, as the Speaker, he will “remain blind” to the defection.
“If you read Article 105 of the Constitution, the question of determination of membership in a House of Parliament is the responsibility of the High Court. For me to make a determination, the matter must be brought to my attention, and it is only at that point that I can deal with it,” said Speaker Muturi.
Article 105(1)(b) of the Constitution reads: “The High Court shall hear and determine any question whether the seat of a member has become vacant.” The time limit for such a determination is six months.
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The danger for the defectors is that if the Speaker is notified and evidence of their defection adduced, they will have to vacate their seats, and contest the Speaker’s decision in court.
Alert the Speaker
However, a lifeline for the defectors is that they can insist that they are still MPs, until the High Court pronounces itself on the matter.
Mr Patrick Gichohi, a former Clerk of the National Assembly, who steered the writing of the current Constitution in the Tenth Parliament, said it will be upon the political parties or individual MPs to alert the Speaker that some MPs had resigned from their sponsoring parties and seek his guidance on whether those individuals are legitimately in the House. But even so, this will have to be accompanied by proof, and if that happens, the MPs will be rendered jobless. However, if they contest it in court, they can hang on as the slow wheels of justice turn and turn at the High Court. “The Registrar of Political Parties cannot declare the seat vacant. The Speaker has to be notified of the resignation officially, and only then can he certify that a member has resigned, but in case of a dispute, it is only the High Court that can give the determination,” said Gichohi.
But legal experts read mischief in Speaker Muturi’s position that he will look the other way as MPs defile the provisions of the Political Parties Act by hanging onto their seats after quitting parties that sponsored them to Parliament.
Dr Conrad Bosire, an advisor with Katiba Institute, a Nairobi-based think-tank on the Constitution and the law, said that Muturi was being “mischievous” and ought to take judicial notice of the MPs’ decisions. “The Speaker cannot say that he is blind to the law. That’s wrong. It doesn’t have to be brought to his attention. The principle of the law is that if something happens as a result of the operation of the law, you are supposed to take cognizance of that,” said Bosire told Sunday Standard.
Bosire said Article 103(1)(e) of the Constitution read together with section 14 of the Political Parties Act, were very clear that if an MP resigns from a political party that sponsored them to Parliament or if an independent candidate joins a political party, then, they have to quit their parliamentary seats.
“The law is clear that resignation takes effect after handing in the resignation letter to the party. If there is evidence that this person has handed his resignation letter to the party secretariat and this can be proved, then he has no business conducting legislative business,” said Bosire.
He added: “The notification is not what validates the resignation; what validates the resignation is the receipt of that letter by the party or the Clerk (of Parliament)”.
The Political Parties Act requires that any MP who wants to resign must notify the party or the Clerk of the relevant House.