AG, ward reps take ‘premature term’ battle to top court

The Attorney-General and the County Assemblies Forum (CAF) are headed for a battle at the Supreme Court on whether Ward Representatives who served between 2013 and 2017 ought to have been compensated because their terms ended early. 

The Supreme Court is expected to say if there is a conflict between Articles 177(1)(a) and 177(4) of the Constitution on the correct term of office for the Members of County Assembly (MCAs) elected in the first General Election under the 2010 Constitution. 

Article 177(4) says a county assembly is elected for a term of five years, article 177(1)(a) says the MCAs’ election should be on the same day as a General Election of Members of Parliament, being the second Tuesday in August, every fifth year. 

CAF says the term of the first county assembly under the 2010 Constitution was to begin on March 4, 2013 and end on March 3, 2018.

It says when the Independent Electoral and Boundaries Commission (IEBC) fixed General Election on August 8, 2017, the MCAs term of office was prematurely terminated by eight months.

It argues that the 2,274 ward representatives ought to have been compensated the salary and other emoluments for losing their right to hold office.

Compensation

The lobby argues that elected leaders have a right to hold office until the expiry of their terms and should be compensated if the term is interrupted. 

But the AG and the IEBC argue that the first election term in the 2010 Constitution was to be shorter than five years as a consequence of transitional provisions. 

They say the law was not discriminative to ward representatives because other political positions were also affected. 

The dispute has escalated to the Supreme Court following an appeal lodged by CAF, challenging the decision of the Appellate Court to set aside a High Court judgment that ordered the government to compensate the leaders. 

According to the AG, it was wrong for the High Court to say the right to hold office is a right to property. 

He wants the ruling by the Court of Appeal upheld. 

Public funds

“The National Treasury would have to set aside Sh8 billion to implement the decision by the High Court, a sum that has not been budgeted for by Parliament,” the AG says. 

This would create a macro-economic imbalance in addition to the ballooning wage bill and causing unnecessary burden on taxpayers, he says.

The AG says courts should always be guided by public interest considerations when arriving at decisions which have ramifications on the budget and appropriation of public funds. 

According to the AG, the interpretation that the ward representatives terms were prematurely terminated perpetuates discrimination by treating them preferentially from other elected State officers without justification. 

For its part, IEBC argues that the five-year term envisaged in Article 177(4) of the Constitution was cut short by the provisions that require a General Election to be held on the second Tuesday of August every fifth year. 

The life of a county assembly was therefore extinguished upon the holding of the General Election on August 8, 2017, the commission says.

Repayment of loans

The Parliamentary Service Commission (PSC) has joined the case as an interested party because the reliefs sought in the petition directly affect an advisory opinion it filed in relation to the fate of 2013-2017 MPs as their terms also ended “prematurely”. 

Senate Clerk Jeremiah Nyegenye said the advisory opinion and the instant petition seek an interpretation of the correct term of office of elected ward representatives and MPs in first post-2010 Constitution, the first County Assemblies and the eleventh Parliament respectively.

Pending the hearing of the petition, the Siaya County Assembly Service Board asked the Supreme Court to allow it join the case as an interested party on grounds that there were issues not accommodated in the suit. 

Through acting secretary Eric Ogenga, the board told the court that between 2013 and 2014, it advanced car and mortgage loans to members to be repaid within five years of their terms in office.

However, a majority of them are unable to repay their loans and have petitioned it to write them off and accruing interest until the conclusion and determination of the case.

However, the court and acting Chief Justice Philomena Mwilu declined the request by the Siaya County Assembly. 

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