Court suspends IEBC’s resignation directive, again

The Labour Relations court has again extended orders that suspended the electoral commission's directive requiring all civil servants seeking elective seats in the August polls to resign by February 9.

This means the public officers eyeing political seats in the forthcoming General Election will continue working for the government as they campaign for their election bids.

The order bars the Independent Electoral and Boundaries Commission (IEBC) from disqualifying them on basis of failing to resign on or before six months to the date of the General Election.

In a brief ruling delivered by Justice Monica Mbaru, the court extended the orders until February 10, 2022 when she will be ruling on whether two independent commissions, the Ethics and Anti-Corruption Commission (EACC) and Public Service Commission (PSC), will be allowed to participate in the case.

The two agencies want to be listed as interested parties in the legal dispute on grounds that they have stake because the orders that will emerge will affect how they discharge their duties.

"For the interest of justice and in order to make a comprehensive ruling on the applications by EACC and PSC, I find it just and fair to extend the interim orders herein until February 10, 2022," said Justice Mbaru.

The interim orders were issued on December 21, 2021 in the case filed by civil servant Julius Wainaina Kariuki after the electoral commission maintained its position that the public officers must resign six months to the elections date.

The order suspended operation of Section 43 (5) of Elections Act that makes it mandatory for public officers to resign six months prior to the election date.

Also suspended is operation of Section 43(6) of the Act that says political aspirants holding positions of the President, the Deputy President, a Member of Parliament, a county governor, a deputy county governor and a member of a county assembly should not quit their offices.

In its request to join the dispute as interested party, EACC says it has stake in the suit because Section 23 of the Leadership and Integrity Act, 2012 provides for political neutrality in public office.

The Act forbids public officers from participating in any political activity that may compromise, or be seen to compromise, the political neutrality of the office they hold, subject to any laws relating to elections, EACC told court.

It stated that civil servants are also restricted from participating in financing of election processes, according to Section 43(1) of the Elections Act.

"The EACC is desirous of joining this suit as the outcome will impact on Leadership and Integrity in the public service during the critical period of election process," said the Commission's lawyer Pius Nyoike.

He says as the agency mandated with overseeing and enforcing the implementation of the Leadership and Integrity Act, EACC will be affected by ruling of the court on the case.

The basis of the EACC's application to join the case are various provisions of the Leadership and Integrity Act, such as Section 23(4) which constrains public officers from publicly indicating support for or opposition against any political party or candidate participating in an election.

On its part, the PSC through lawyer Jaqueline Manani said the issues in the petition are already settled by the High Court and that there is a pending appeal.

She stated that the Court of appeal is scheduled to deliver its judgment on February 8, 2022.

In challenging the law that require resignation of civil servants, Mr Kariuki says it is discriminatory to have one set of public officers leave office six months prior the polls date and another set to continue holding office and drawing salaries.

He argues that the announcement made by the electoral agency last year reminding public officers, who intend to vie for political seats to quit on or before February 9, is a threat to the political rights. He adds that the directive flew on the face of conflicting decisions of the High Court on the matter.

He wants the case to be determined by uneven number of judges. His lawyer, Okongo Omugeni yesterday urged the court to forward the matter to the Chief Justice for empanelment of the bench.

"To the extent that there are two conflicting decisions, we request you allow this matter to be determined by a court of higher status or uneven number of judges," said Mr Omugeni.

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