Some of President William Ruto’s Cabinet Secretaries (CSs) have joined the campaign trail for by-elections, reviving debate on the involvement of state officers in politics.
In the run-up to the August 9 polls, Dr Ruto waged a war against former President Uhuru Kenyatta’s CSs, who were campaigning for Azimio la Umoja One Kenya Coalition presidential candidate Raila Odinga.
Dr Ruto’s United Democratic Alliance (UDA) even sought the prosecution of then-Interior CS Fred Matiang'i, his ICT counterpart Joe Mucheru, James Macharia (Transport and Infrastructure), Eugene Wamalwa (Devolution) and Peter Munya of Agriculture for violating the Constitution.
UDA, through its secretary general Veronica Maina, had demanded that Director of Public Prosecution (DPP) Noordin Haji invoke Article 157(6)(a) of the Constitution and press charges against the ministers.
“The Cabinet Secretaries and the Principal Secretary, being state officers, are in breach of Section 15 of the Election Offences Act, 2016, for using their offices to engage in active support of the Azimio coalition presidential candidate and for publicly indicating their support for their preferred candidate,” Ms Maina said.
But barely a month after being sworn into office, Chief Cabinet Secretary Musalia Mudavadi and Defence CS Aden Duale have hit the campaign trail for their preferred candidates for by-elections in what smacks of doublespeak by the political class.
Mr Mudavadi and National Assembly Speaker Moses Wetang’ula, who is also required to remain neutral in party politics, actively campaigned for Ford Kenya candidate Wafula Wakoli in the recently concluded Bungoma senatorial race. Mr Wakoli won by garnering 66,032 votes.
In Garissa Township constituency, CS Duale has endorsed UDA candidate Mohamed Barrow Dekow. In an interview, Mr Duale said he will be campaigning for Mr Dekow as there is nothing wrong with him “guiding the electorate” he has represented for 20 years.
The CS has been holding several meetings with elders from his Abduwak clan in lobbying for support for the UDA candidate.
“I have represented this constituency for 20 years and I have to guide them in electing my successor. There is nothing unconstitutional about it. I will be there on the ground for two weeks starting December 20 to ensure they vote [for] the right person,” CS Duale told Sunday Nation.
He said he was campaigning in his personal capacity without using any state machinery to force people on whom to back in the January 5 by-election. “The difference between me and the likes of [Dr] Matiang’i is that I am going to campaign on my own. Matiang’i was using state machinery, chiefs and assistant chiefs to campaign for Azimio presidential candidate,” he said.
In Kandara Constituency, Water, Sanitation and Irrigation CS Alice Wahome has been accused by local politicians of trying to influence the election of his successor.
No guilty conscience
Lawyers argue that although the law does not expressly bar CSs from engaging in politics, they should refrain on principle.
They argue that they should not be seen to be biased when they are supposed to serve all Kenyans in their Cabinet positions.
“There is no categorical position or direct bar of CSs participating in politics, but there is a strong reference; that is why CSs are appointed outside Parliament so that they don’t engage in partisan politics,” says constitutional lawyer Bobby Mkangi.
“The law is cautious that they should engage to the extent of propagating policies of their ministries. The law cautions them to be shy of getting into politics that portrays them as taking sides. Playing politics breeds bias in the minds of people they are expected to serve,” adds Mr Mkangi.
Lawyer Danstan Omari says it is only Principal Secretaries and other civil servants that are expressly barred. “It is civil servants that the law expressly bars from campaigning. For CSs, it is not expressly provided that they cannot participate in politics. It has always been a thorny issue, but there is nothing that stops them. CSs are political appointees and are likely to engage in politics for survival,” says Mr Omari.
Vihiga Senator Godfrey Osotsi said the decision by the CSs to campaign demonstrates dishonesty by the ruling Kenya Kwanza alliance. “It demonstrates that Kenya Kwanza is a government that promotes impunity. It also demonstrates their dishonesty because during the 2022 election campaigns, they wrote to the IEBC on the issue of political CSs,” Mr Osotsi said.
Shifting goal posts
The issue of CSs engaging in campaigns has remained emotive in every election cycle, with those out of government always protesting against the involvement of state officers in campaigns. In his 2017 presidential petition, Mr Odinga imputed improper conduct on several CSs for allegedly campaigning for President Kenyatta’s re-election.
Mr Odinga argued that being public officers, CSs are prohibited by the Constitution, the Political Parties Act, the Public Officer Ethics Act and the Election Offences Act from participating in political activities. He demanded that the implicated CSs be prosecuted. He also urged the Supreme Court to declare Section 23 of the Leadership and Integrity Act unconstitutional for exempting CSs from the requirement of impartiality contrary to Article 232 of the Constitution.
Section 23 of the Leadership and Integrity Act provides that an appointed state officer, other than a CS or a member of a County Executive Committee (CEC), 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; or manifest support for or opposition to any political party or candidate in an election.
While the apex court nullified the outcome of the presidential vote, it rejected Mr Odinga’s claims of the involvement of CSs in political campaigns. The court ruled that CSs and CECs can dabble in active politics as they serve at the pleasure of either the President or governor.
“They are political appointees with the express purpose of delivering on the manifesto of their appointing authority or his or her political party. It is an essential part of a political government in any democracy,” the court said.
The court agreed that Section 23 of the Leadership and Integrity Act is ambiguous as it exempts CSs from the prohibition that requires public officers to keep off active politics. They, however, rejected Mr Odinga’s plea to declare the provision unconstitutional.