Leaders do not have to resign to compete for electoral seats

Members of Amani National Congress (ANC) Senator Cleophas Malala (centre) Matungu MP Oscar Peter Namulandi, Tindi Mwale (right) MP Butere and other leaders address the media at Parliament buildings, Nairobi. March 30, 2021 [Elvis Ogina,Standard]

A sitting president and other elected leaders don’t have to resign if they wish to contest for a position in a general election. 

In a verdict which now settles the debate on whether elected leaders should vacate office in readiness for polls, High Court Judge Anthony Mrima has ruled that the law does not require the president, governors, MPs and MCAs to be out of the office until the second Tuesday of August every fifth year.

According to the judge, a new electoral cycle begins at a general election and ends on the second Tuesday of August every fifth year.

However, the judge ruled that in the event an MCA wants vie for an MP’s position in a by-election, he or she must resign within seven days after the Speaker of either House of Parliament declares the position vacant.

Other than the four, Justice Mrima was of the view that State and public officers should resign within 14 days from the day the Independent Electoral and Boundaries Commission (IEBC) gives notice for polls or before parties conduct nominations.

“I find that a period of 14 days from the day the Independent Electoral and Boundaries Commission gives notice for a general election is sufficient time within which the public officer, other than the president, the Members of Parliament, governors and Members of the County Assemblies ought to tender his or her resignation from the public office,” he decreed.

The judge was determining a case filed by two voters, Kennedy Irungu and Martin Njuguna, challenging the election of 11 lawmakers who were either nominated by their parties or were elected as MCAs before joining the Senate and National Assembly.

According to the two, Mary Waithera (Maragua MP), Catherine Waruguru (Laikipia), Susan Kihika (Nakuru County Senator), Cleophas Malala (Kakamega) and Partick Kariuki (Laikipia West) were not eligible to vie in 2017 as they did not resign from their MCA positions.

Others listed in court documents are Joyce Chepkoech (Bomet Woman Rep), Joash Nyamoko (North Mugirango MP), Asha Hussein (Mombasa Woman Rep), Japheth Kiplangat (Bureti MP) and George Sukunyia (Kajiado West MP).

The 11 lawmakers urged the court to dismiss the case, arguing that there was no evidence that they did not qualify for their current positions.

They argued that the case had already been determined, therefore the High Court had no powers to re-open the issue.

At the same time, Nyamoko urged the court to wait for the Supreme Court to determine whether Ann Wanjiku Kibe (Gatundu North MP) qualified to vie for the position.