Medical Services Minister Anyang' Nyongo addressing a past health stakeholders workshop at Hilton Hotel. Photo/FILE NATION MEDIA GROUP
By VINCENT AGOYA vagoya@ke.nationmedia.com
Posted Wednesday, March 27 2013 at 00:30
Posted Wednesday, March 27 2013 at 00:30
Medical Services minister Prof Anyang’ Nyong’o has asked the court to quash President Kibaki’s order that ministers elected to new posts should resign, saying it would create a constitutional crisis.
The minister, who is Senator-elect for Kisumu County, wants the court to stop the swearing in of elected leaders in Parliament until the next government is legally in place.
He described as “illegal” the presidential directive requiring ministers elected to positions of senators, governors, MPs or women representatives to quit.
In a petition certified as urgent, Prof Nyong’o said there was no law that required elected ministers and their assistants to resign, adding that the matter had been compounded by the petition in the Supreme Court challenging the outcome of the presidential poll.
“The government is in transition to a devolved system and, as such, ministers and their assistants are not holding two offices. Their new offices will become functional on their swearing in,” Prof Nyong’o’s petition said.
He said a vacuum would be created as the Supreme Court decision on the petition would have a spillover effect on the formation of the Cabinet.
“While awaiting the decision of the Supreme Court on the presidential election challenge, the absence of a Cabinet would create a crisis as several constitutional organs, such as national security, require ministerial representation and are necessary for the management of the State,” the petition said.
The petition, to be heard tomorrow, was lodged at the High Court in Nairobi ahead of the swearing in of MPs and senators.
Prof Nyong’o said the Supreme Court case had legally extended the mandate of the caretaker government.
“The right to remain in office can only be lost in the event that the elected minister or assistant minister takes the oath of another office and not upon resignation since resignation has not been contemplated in the Constitution,” the petition went on.
Prof Nyong’o insisted that Cabinet ministers should remain in office until the next president is sworn in.
He said resignation would result in a situation where the office of the President exists with no Cabinet ministers pending the transition to the devolved government.
Prof Nyong’o is seeking orders to quash the directive, saying it was made without regard to the Constitution and is therefore null and void.
He also sought a prohibitory order restraining the Clerk of the National Assembly from swearing in senators, governors, members of National Assembly and women representatives until the next president is sworn in.
He argued that it was only the next president who had the prerogative to proclaim the devolved government that will establish the elected posts lawfully.
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