Thursday, January 12, 2012

Jitters over law compelling ministers to quit positions ahead of elections



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File | NATION PNU Alliance officials led by Vice President Kalonzo Musyoka (centre) cut a cake after a meeting at the party offices in Nairobi last month. The Election Act requires that ministers and their assistants resign from their positions seven months to elections.
File | NATION PNU Alliance officials led by Vice President Kalonzo Musyoka (centre) cut a cake after a meeting at the party offices in Nairobi last month. The Election Act requires that ministers and their assistants resign from their positions seven months to elections. 
By BERNARD NAMUNANE bnamunane@ke.nationmedia.com
Posted  Wednesday, January 11  2012 at  22:00
IN SUMMARY
  • Office of the President has taken up the matter following protests from permanent secretaries and directors in ministries, says official
A requirement in the Election Act that ministers and public servants resign from their positions seven months before elections is causing jitters in government circles.
A senior government official revealed the Office of the President had taken up the matter following protests from permanent secretaries and directors in ministries, who had been informed of the requirement to resign seven months to the election date.
Said the official: “The issue of ministers and assistant ministers resigning is being looked at by the Office of the President.”
It is understood the Cabinet wants the matter, which has also been taken to court for interpretation by two individuals, resolved quickly for continued smooth provision of services.
The Election Act protects President Kibaki, Prime Minister Raila Odinga, Vice President Kalonzo Musyoka and MPs from the requirement to resign from their positions seven months to an election.
After this year’s elections, senators, governors, deputy governors and county assembly members will also be protected.
States Section 43 (5) of the Act: “A public officer who intends to contest an election under this Act shall resign from public office at least seven months before the date of election.”
On Wednesday, lawyers were divided over the requirement, which has seen civil servants eyeing top positions protest at the memo issued by Head of Civil Service Francis Muthaura urging them to obey the Elections Act.
A well placed source at the Attorney General’s office said those affected by the requirement had submitted their petition seeking guidance on compliance with the law.
It is understood that a comprehensive guide on the requirement will be issued on Friday after the High Court rules on the correct election date.
The source also said that given the uncertainty over the election date, public officers who do not obey Mr Muthaura’s memo would be punished.
It also emerged that the drive to have permanent secretaries resign because of their political ambitions would be discussed during their meeting on Monday.
Lawyer Evans Monari and Kibe Mungai called for the resignation of ministers and their assistants unless Attorney General Githu Muigai changes the requirement through the Statute Law Amendment Bill.
Mr Monari said the requirement was preparing the country for the new dispensation when ministers will not be Members of Parliament.
“This is clear. It was the intention of the drafters and Parliament for ministers and assistant ministers to resign from their positions. It is not an error and the only thing that can happen to save them is the AG protecting them through the Statute Law Amendment Bill which will be moved in Parliament when it opens,” he said.
He argued that even though ministers were not required to resign in the past, the current Constitution establishes a different scenario where they are not supposed to be MPs.
Mr Kibe argued that ministers and MPs were separately defined as public officers in the Constitution and if the Act was to protect them all, it should have included ministers under the officers who are exempted from the provisions of the law.
Under the present circumstances, he submitted that they should quit their offices alongside PSs and other top civil servants seeking elections positions.
“The law has to be read in a manner in which it is specifically written. In the Constitution, ministers and MPs are separately defined as public officers and if there are any limitations, they have to apply to all. Those not covered by the exemption would have to resign and you can see clearly that ministers and assistant ministers have been excluded,” he said.
While admitting that it was an oversight in drafting the law, Commission for the Implementation of the Constitution Charles Nyachae and former MPs Justin Muturi and Paul Muite argued that ministers were covered by the exemption of MPs from the requirement to resign.
“Under the current transition arrangements, the ministers and assistant ministers are protected from resignation as MPs who have been appointed to their positions by the President. However, it is something that should be re-looked in days to come,” Mr Muturi said.
The legislator, a former magistrate, said the requirement for ministers to resign was meant for future governments and not the current regime.
“It was an overkill on the part of drafters but it really does not require ministers and assistant ministers to resign. The provision is futuristic and doesn’t affect the current ministers and their assistant,” he said.
“Ministers and assistant ministers serve in both capacities (as MPs also). If it was the intention of drafters, it would be absurd,” he said.Mr Muite, a presidential aspirant, argued that it would be strange if the drafters of the law wanted ministers to resign from their positions. He stated that the courts would give the correct interpretation of the provision.
At the same time, the Act bars presidential candidates from dolling out government-sponsored goodies to sway voters in their campaigns.
The prohibition to initiate development projects to attract votes three months to the election date means presidential candidates will not lay foundations for schools and hospitals, or flag off road projects in search of votes.
Section 43 (1)(d) states: “A public officer shall not use public resources to initiate new development projects in any constituency or county three months before an election in that constituency or county.”

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