Are CSs barred from dabbling in partisan politics? A big NO!

Well, God give them wisdom

that have it; and those that are

fools, let them use their talents.

(Twelfth Night, William Shakespeare)

It is the season of elections, a season when the truth, as in times of war, becomes a casualty. We can excuse the hoi polloi for getting carried away by the false propaganda being spewed by politicians.

But we can't excuse the media and those who have gone to school when they become purveyors of lies. The biggest lie is the claim that Cabinet secretaries are prohibited from being partisan in politics and participating in politics. This is falsehood. Lies. Canard.

Chapter 6 of our Constitution that is relied on by the anti-ministers argument doesn’t bar state officers from politics but from “holding office in a political party”.

The chapter sets the moral bar for all public and state officers, one of which is not to bring disrepute to the public office.

This chapter is about moral culpability. It is about normative ethics. The basic qualification of a public and state officer under this chapter is: Can I trust him or her to take care of my child, to be my accountant, to take care of my sheep?

This chapter was given effect by the Leadership & Integrity Act. Article 80 of the Constitution tasked Parliament to enact the Leadership & Integrity Act with “necessary modifications to public officers”.

In their unquestioned wisdom, our Parliament enacted the law and in Section 23 thereat said: “...an appointed state officer, OTHER THAN A CABINET MINISTER… shall not, in the performance of their duties – act as an agent for, or further the interests of a political party or candidate in an election; manifest support for or opposition to any political party or candidate in an election or engage in any political activity that may compromise or be seen to compromise the political neutrality of the office …”

The synonyms for “OTHER THAN” are excepting, apart from, but for, excluding, outside of, differently, otherwise, barring, save, besides, beside, outside, with the exception et al. The simple and literal interpretation of Section 23 is that all state officers are barred from politics except Cabinet ministers.

The Constitution says that a state officer is one who occupies a public office and is remunerated from the Consolidated Fund or monies allocated by Parliament.

The rationale for allowing Cabinet ministers to be politically partisan is constitutional, legal and logical. A President is elected into office based on or pursuant to the promises he makes to the electorate. The President implements his agenda and promises directly or through delegation to his political appointees. The Civil Service is permanent and serves all governments.

Cabinet secretaries serve at the pleasure of the President and their tenures end when the President dismisses them, when the President’s term ends or when he loses an election. The fortunes of a Cabinet minister are, therefore, tied with those of the President.

It would be illogical for a CS not to channel the wishes of the President, irregardless of the education level of the CS.

Vessel of the President

The moment he accepts appointment to the Cabinet, he leaves his intelligence at the gates of State House and becomes a vessel of the President. Currently on Netflix, there is the Danish political series BORGEN: Power & Glory.

With all the powerful characters in the play, all must defer to Prime Minister Signe Kragh. And in the series Coalition Government Cabinet, the ministers from various political parties have to sacrifice their beliefs and ideologies and channel those of the prime minister. As always, the screen imitates real life.

The Leadership and Integrity Act was enacted in December 2012.

United Democratic Alliance (UDA) loyalists were in control of all parliamentary committees between March 2013 and March 2018 and had sufficient time to repeal or amend Section 23 to remove the exemption. They didn’t do it.

Anti-ministers politicians and activists have had 10 years to go to the High Court and shop for an activist judge to declare the section “null and void”. They have not.

The gripe against ministers echoing the wishes of President Uhuru Kenyatta to campaign for Raila Odinga are therefore sour grapes.

UDA MPs slept under their watch and we can't allow them to pretend to be awake now.

By effluxion of time, the courts cannot repeal or revise the exemption in Section 23.

Parties are estopped by acquiescence and estoppel in pais (act of notoriety) from reopening the exemption.

Null and void

Only a corrupt or weak judge would declare this section “null and void” after more than 10 years of no active usage of it by those complaining now.

In every country on earth, Cabinet ministers parrot the President or Prime Minister, whoever is the Head of Government.

The moment a minister no longer wants to channel the President’s thoughts, he resigns. There is no ambiguity or equivocation in this.

And there is only one centre of power and one person who is owed loyalty: The President.

We say that law is clear as a cliché. But Section 23 is as clear as knowing that the sun will rise tomorrow.

It is disheartening when the media gives space to those that accuse ministers of being politically partisan when the law gives them the freedom so to be.

We can indulge grey areas, but we cannot countenance falsehood.

The law is clear and doesn’t need interpretation or political garnishing. As Jesus said:

Let them alone; they are blind guides of the blind.

And if a blind man guides a blind man, both will fall into a pit.

Matthew 15:14

Donald B Kipkorir is an advocate of the High Court of Kenya and supporter of Raila Odinga’s presidential candidacy. @DonaldBKipkorir