Court: Law on pre-election party hopping is unconstitutional

Dr Mbae who is eyeing the Subukia parliamentary seat. He is sought to protect MCAs and MPs eyeing elective seats from losing their positions. FILE

Photo credit: Nation Media Group

The High Court in Nakuru has declared unconstitutional Section 14 of the Political Parties Act, which requires sitting MCAs who switch political parties to resign within 180 days of the date of a General Election.

A three-judge bench comprising justices Joel Ngugi, Hillary Chemitei and Teresia Matheka was formed by Chief Justice Martha Koome to hear a petition filed by Kabazi MCA Dr Peter Mbae.

The justices issued orders restraining Speakers of county assemblies and the National Assembly from declaring vacant the seats of MCAs who ditched their sponsoring parties to join others or to become independents or independents who joined parties.

The judges noted that Section 14 of the Political Parties Act is not in line with articles 194, 101 and 38 of the Constitution.

"The interpretation assigned to article 194 (1)(e) by section 14 of the Political Parties Act is not aligned to Articles 4(2); 10; 19; 20 and 38 of the Constitution, to the extent of that miss-alignment, null and void," read the judgment.

Dr Mbae filed his petition in February, seeking orders from the court that would protect sitting MCAs who had switched camps from losing their seats ahead of the August elections.

His move to court followed a communique from Nakuru County Assembly Speaker Joel Kairu, informing members who had expressed interest in contesting under a different party that they not only needed to resign from their sponsoring parties but also lose their positions.

Dr Mbae argued that Section 14 of the Political Parties Act, which seeks to promote democracy and party discipline, is constitutionally deficient as it does not have provisions for unique circumstances that occur during the transition period in the election cycle.

He sued the Registrar of Political Parties, the Independent Electoral and Boundaries Commission, the Attorney-General and the Speakers of the 47 county assemblies.

In April, the case was referred to CJ Koome, who constituted a three-judge bench following a request by the parties.

Dr Mbae, a supporter of Deputy President William Ruto, had ditched the Jubilee Party, which sponsored him to the county assembly in 2017. He failed to clinch the United Democratic Alliance party ticket to run for the Subukia MP’s seat.

Reacting to the judgement Dr Mbae welcomed the judgment which he termed a major win for democracy in Kenya for the years to come.

Dr Mbae noted that the judges have reaffirmed his stand that Kenyans need representation until the last day and that the drafters of the Act of parliament had not foreseen this fact.

According to him, the judgement has given a lifeline for many MCAs who risked losing their seats after moving to other parties.

“If you declare that seat vacant, it will not only affect the members of the county assemblies but the voters who will remain unrepresented for that period. The section of the Political Parties Act had jeopardized the rights of the voters on representation,” said Dr Mbae.


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