Reprieve for legislators who dumped sponsoring parties
The High Court has ordered the Speakers of the Senate, the National Assembly and county assemblies not to declare vacant the seats of holders who have resigned or defected from their sponsoring parties.
The High Court has ordered the Speakers of the Senate, the National Assembly and county assemblies not to declare vacant the seats of holders who have resigned or defected from their sponsoring parties.
The conservatory orders were issued by Justice Joel Ngugi, in a landmark ruling in Nakuru on Friday. In the petition, Kabazi Ward Representative Peter Kibe Mbae had sought to protect leaders who had ditched their parties from losing their seats.
The court also referred the full petition to Chief Justice Martha Koome to form an expanded bench to hear the matter conclusively.
Justice Ngugi said the petition raises issues of serious public interest that cannot be dealt with by a single judge.
Public interest
"In the view of the urgency of the matter and the public interest in the case, the Deputy Registrar is hereby directed to forward the file to the Chief Justice on a priority basis and to follow up on it, so that it is acted upon with all due dispatch," Justice Ngugi ruled.
He continued: "The matter is hereby certified as one raising a substantial question of law in terms of article 165 (4) of the Constitution and is hereby referred to Chief Justice Martha Koome, to assign an uneven number of judges to hear and determine it.”
Dr Mbae, who is eyeing the Subukia parliamentary seat in Nakuru County, filed the case last month, seeking to challenge a directive from Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati to MCAs.
He told sitting MCAs seeking elective seats in the August 9 General Election on a party different from the one that sponsored them to resign from their positions before submitting their nomination papers in April.
Dr Mbae sought to have Section 14 of the Political Parties Act, which Mr Chebukati, relied on, declared unconstitutional.
Dr Mbae argued that the MCAs should be allowed to change the party membership without having to lose their seats provided they are within the set IEBC timelines.
Promote democracy
He said the section, which aims to promote democracy and party discipline, is constitutionally deficient as it does not provide for unique circumstances that occur during the transition period in the election cycle.
The MCA sued the Attorney-General and the Speaker of the Nakuru County Assembly and listed the registrar of political parties, the IEBC and the Speakers of the 47 county assemblies as interested parties.
This means MCAs, MPs and senators who have resigned from their sponsoring parties and joined others cannot be forced out or asked to resign their positions before submitting their nomination papers in April.
In his supporting affidavit, Dr Mbae claims the law is silent on political rights and fails to put the issues into context.
He argues that if the members decide to resign and lose their seats, it will be impossible to refill such vacancies and that could lead to disastrous consequences.
“Section 14 is deficient to an extent that it requires that a sitting MP or MCA resigns from his seat but does not offer an opportunity for refilling the seat hence exposing the constituents to non-representation for the remainder of the term of the respective houses of representation,” he argues in the petition.
