Will State officers vacate party positions? Will State officers vacate party positions?

By Stephen Makabila

The High Court has ruled that politicians serving as State officers while holding positions in political parties are in breach of the Constitution.

Given several major parties have ministers holding positions, does the ruling open doors for a shake up in affected outfits just five months to the March 4, 2013 General Election?

Affected ministers had solace in a ruling by former Attorney General Amos Wako, in June last year, who told the Commission for the Implementation of the Constitution (CIC) and the defunct Interim Independent Electoral Commission that ministers holding political party positions were not violating the Constitution.

Wako (now in retirement), had argued that Article 77(2) of the Constitution was never meant to apply to the current Cabinet ministers since their tenure of office is preserved “as is” in the transitional provisions of the new Constitution until after the next General Election.

CIC had then maintained that ministers, assistant ministers and MPs should resign their party posts since they were in breach of the Constitution.

And last week, three judges ruled that it was unconstitutional for State officers to hold party positions. The judges delivered the ruling in a case that had been filed against Deputy Prime Minister Uhuru Kenyatta in 2010 by four Kanu members when he was still Kanu chairman.

Mombasa High Court judges Mary Kasango, Edward Muriithi and Grace Nzioka ruled that a State officer cannot hold a political party position because it was outlawed by the Constitution.

UDM Secretary General Martin Kamwaro, says the focus currently was on political parties preparing for the coming General Election.

“Issues concerning whether the current crop of State officers should hold party positions or not are not the focus because political parties are busy making final touches in preparation of the coming General Election,” added Kamwaro.

The Constitution defines a State officer as one holding the office of the President, Deputy President, Cabinet Secretary, Member of Parliament, the Attorney General and Director of Public Prosecution among others.

Prime Minister Raila Odinga is the ODM party leader, Vice President Kalonzo Musyoka, is the Wiper Democratic Movement (WDM) party leader, while Deputy Prime Ministers Musalia Mudavadi and Uhuru are presidential aspirants for UDF and TNA respectively.

Other party leaders include Trade Minister Moses Wetangula (Ford-Kenya) and Water minister Charity Ngilu (Narc).

Assistant minister Peter Kenneth, Eldoret North MP Willam Ruto, Gichugu MP Martha Karua, and Lugari MP Cyrus Jirongo, are also among those who double as party leaders and presidential aspirants.

Among party officials are Labour minister John Munyes who is the Ford-Kenya chairman, Education minister Mutula Kilonzo who is WDM Secretary General and Kimilili MP Eseli Simuyu who is the Ford-Kenya Secretary General.

Overtaken by events

It remains to be seen whether politicians will honour the ruling, appeal against it or find other ways of disregarding it.

Uhuru’s spokesman Mr Munyori Buku, dismissed the ruling, arguing that it has already been over-taken by events, since the DPM has moved to TNA where he is only the presidential aspirant and not party official.

Lawyer Titus Bittok, says there is little that would make politicians to relinquish party positions with elections around the corner.

“After holding on their positions for all these time, it’s too late in the day to compel them to step aside. The law may only be effectively implemented after the March 2013 General Election,” added Bittok.

At the height of the debate last year, the International Centre for Conflict and Peace and Kenya National Commission on Human Rights wanted State officers to vacate party positions but the PM suggested the dispute be referred to the Supreme Court for interpretation.

Federal Party of Kenya chairman Kizito Temba says most ministers and MPs are only figure heads in political parties, and do not engage in daily administration of their parties.

“The best way out is for the law to apply after the coming General Election because the High Court ruling was on one party, where even the point of contention has been over-taken by events,” added Temba.