Before you vote: The truth about the law and cabinet secretaries campaigning

Deputy President William Ruto second (left), Uasin Gishu County Governor Jackson Mandago (left), Water and Irrigation Cabinet Secretary Eugene Wamalwa (centre), Jubilee Kiambu gubernatorial candidate Ferdinand Waititu and Thika Town MP Alice Ng'ang'a during a Jubilee rally in Kapsaret constituency in Uasin Gishu County on June 10, 2017. PHOTO | JARED NYATAYA | NATION MEDIA GROUP

Does the law allow cabinet secretaries to campaign?

“…but the truth of the matter is, no civil servant is allowed to take part in political campaigns – that is the law – except the Cabinet ministers. Cabinet ministers are free to engage, that is in the law.”
- Jubilee Party Secretary General Raphael Tuju on NTV's "PressPass" on June 19, 2017

Mr Tuju was responding to a question about public servants in political campaigns, a subject that came up as the panellists debated a story written by Daily Nation journalist Walter Menya, who had been arrested the day before.

The government has been criticised for a number of actions during the election period. These include creating a website and TV advertisements by the President’s Delivery Unit outlining the Jubilee government’s accomplishments.

These actions contradict the Election Offences Act. Section 14 (2) says:

No government shall publish any advertisements of achievements of the respective government either in the print media, electronic media, or by way of banners or hoardings in public places during the election period.

The same Act makes it an offense for a public officer to engage in activities of parties or candidates, show support or opposition for the same, to engage in campaigns or other political activities or start new development projects in a constituency or county using public money to support a political party or candidate.

However, Cabinet Sectaries are allowed to campaign by the Leadership and Integrity Act 2012. In Section 23 (1), the Act exempts cabinet secretaries or county executive committee members from a requirement that State Officers not act as agents of political parties or candidates or show support or opposition for parties or candidates.

According to Mr Kibe Mungai, a constitutional lawyer, there is no conflict between these laws, because Cabinet Secretaries are a political position. “Under the presidential system of government, a cabinet secretary is part of the political administration of the President, so that Cabinet, in the strict sense of the word, is a political body,” he explains. “This is the reason why, for purposes of Cabinet Secretaries, the President does not even recruit through the Public Service Commission.”

So the claim that Cabinet secretaries can campaign according to the law is true.