Nairobi County Assembly

A past session of Nairobi County Assembly. 

| File | Nation Media Group

MCAs eyeing national seats unsure when to relinquish current office

Ward reps eyeing parliamentary seats in the August 9 General Election have been caught up in a legal dispute on when they should relinquish their current positions.

The members of county assemblies (MCA) are waiting for the appellate court’s decision on the dispute that seems to have split two High Court judges.

Justice Weldon Korir and Anthony Mrima made conflicting findings while handling separate petitions concerning interpretation of Article 99(2)(a) and (d) of the Constitution, which disqualifies an MCA from being elected an MP.

The judges also differed on whether a holder of an elective political office who wants to move from the county government to the national government or vice versa, must first relinquish his or her post so as be cleared by the electoral agency.

Article 99(2)(a) and (d) requires MCAs who aspire to vie for other positions in a general election to resign before political parties’ nominations.

It says, “A person is disqualified from being elected a Member of Parliament if the person is a state officer or other public officer, other than a Member of Parliament; or is a member of a county assembly.”

While Justice Mrima held a sitting President, MP, governor or MCA intending to vie for any political seat does not have to vacate the current position, Justice Korir said governors and MCAs aspiring to serve as President or MP must resign first.

Nominations breed absurdity

Justice Mrima, for his part, stated that an interpretation of Article 99(2)(a) and (d) of the Constitution to mean that MCAs should relinquish their positions before party nominations breed absurdity.

"Allowing such an interpretation to prevail would be contrary to the presumption against unworkable or impracticable result, which, in principle, calls for a court to avoid a construction which produces an unworkable or an impracticable result," said justice Mrima.

Speaker Muturi: MCAs vying for Parliamentary positions must resign

While handling a petition that sought nullification of the election of 11 MPs who served as MCAs prior to their 2017 election, judge Mrima said they were qualified for their new posts.

He said an MCA who intends to vie for MP in the next general election does not have to resign either before the party nominations or at all.

He stated that in a scenario where the majority of MCAs aspire to win other seats and are required to resign, the county assembly would lack quorum and be unable to discharge its constitutional mandate for the remainder of its term.

"It would also be against the grain on the presumption against anomalous or illogical result. The principle calls for a court to rule against a construction that creates an anomaly or otherwise produces an irrational or illogical result,” said the judge in the judgment dated May 4, 2021.

He noted that the trend in the term of office for the President, MPs, governors and MCAs is five years and that elections to those offices are held on the second Tuesday of August every fifth year.

"Inevitably, by operation of the law, the President, MPs, governors and MCAs relinquish their political positions on the date of the next general election," said judge Mrima.

He also ruled that state and public officers eyeing elective seats should resign within 14 days from the day the Independent Electoral and Boundaries Commission (IEBC) gives notice for general election or before parties conduct nominations.

But Justice Korir on October 7, 2020 stated that there is no right to public office. He added that any holder of an elective political office who wants to move from the county government to the national government, or vice versa, must first relinquish his or her post before his or her nomination papers are accepted by the IEBC.

He stated that according to Article 193 (2)(a), the President, the Deputy President and Members of Parliament cannot contest a county assembly election before resigning their political offices.

“This means that the President, the Deputy President or a Member of Parliament, being State officers and not being exempted by the provisions of Article 193, are barred by Article 193(2)(a) from being nominated by IEBC to vie for the membership of a county assembly. They can only qualify if they resign their positions before presenting their nomination papers to the IEBC,” he said.

Election

In the judgment dated October 7, 2020 revolving around the election of Gatundu North MP Wanjiku Kibe, the judge said the only holders of political office who can stand in a presidential election without relinquishing office are the President, the Deputy President and MPs.

“Not even a Governor or Deputy Governor is exempted by the provision of Article 137(2), which provides for disqualification for election as President. The reason is that in the constitutional matrix, governors and deputy governors belong to the same family with members of county assemblies,” said Justice Korir.

“The drafters of the Constitution created a distinction in the qualifications and disqualifications for persons who want to contest seats in the national government and those seeking political offices in county governments,” he added.

The judge quashed the election of Ms Kibe after finding that she was not qualified to vie for the parliamentary seat because at the time the IEBC cleared her she had not resigned as an MCA at the Kiambu County Assembly.

She, however, lodged an appeal and the judgment is scheduled for March 18, 2022.