Deputy President William Ruto’s latest fight with Cabinet secretaries involved in political campaigns has shone a light on the 2017 Supreme Court ruling on the matter.
The United Democratic Alliance on Friday urged Director of Public Prosecutions Noordin Haji to initiate criminal proceedings against five CSs for allegedly campaigning for Azimio la Umoja-One Kenya Coalition candidate Raila Odinga.
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, Political Parties Act, Public Officer Ethics Act and Election Offences Act from participating in political activities.
Mr Odinga demanded that the implicated CSs be prosecuted. He also urged the Supreme Court to declare Section 23 of the Leadership and Integrity Act as unconstitutional for exempting CSs from the requirement of impartiality contrary to Article 232 of the constitution.
Referring to Article 152(4)(a), the petitioners submitted that every CS swears obedience to the constitution and ought therefore to be impartial in political contests.
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 on 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 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 ruled.
The judges affirmed the role of CSs in campaigns arguing that a change in the presidency signals the immediate resignation or replacement of such political appointees as CSs or CECs.
“This does not apply to the rest of the civil service whose tenure is protected against the vagaries of politics. This is also the reason why civil servants do not and should not participate in active politics, as they should remain apolitical,” stated the judges.
The court agreed that Section 23 of the Leadership and Integrity Act is ambiguous because 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.
“The rule of the thumb has always been that parties must be bound by their pleadings and especially in a case such as this, where the petitioner is asking the court to address its mind to the possible unconstitutionality of a legal provision,” the judges said, and directed that the matter be addressed in the right proceedings in the right circumstances.
Dr Ruto has trained his guns on CSs Fred Matiang’i (Interior), Joe Mucheru (ICT), Peter Munya (Agriculture), Eugene Wamalwa (Defence), James Macharia (Transport and Infrastructure) and Keriako Tobiko (Environment). Mr Munya and Mr Wamalwa are in Mr Odinga’s regional campaign teams.
UDA Secretary-General Veronica Maina told the DPP that the continued involvement of the officers threatens to compromise the credibility of the August 9 polls.
“The involvement of the CSs and principal secretaries raises doubt on the neutrality and objectivity and it is a barefaced, unconcealed and blatant conflict of interest,” she stated in a June 3 letter. The party cited Section 15 of the Election Offences Act 2016.
But Mr Odinga’s head of campaigns, Laikipia Governor Ndiritu Muriithi, dismissed UDA as desperate after sensing defeat.
“They are making fantastical claims. You can see signs of desperation in all these claims,” he said.