Law barring former MPs from land commission blocked

Former MPs, MCAs, and governors are now free to seek employment as members of the National Land Commission and National Police Service.

The High Court on Friday ruled as "unconstitutional, null and void"  the law that disqualifies a person from employment or recruitment as a public officer by virtue of having contested for the seat of a member of Parliament, County Assembly or as a governor.

Justice James Makau said it was unjustified to lump together electoral contestants with felons, bankrupts and constitutional violators.

“I find that upholding or maintaining the impugned law would be a direct threat to the expansion of democracy as it would mean that an electoral contestant would subsequently become unfit for public office for a simple reason of having contested for an electoral post in the Republic of Kenya,” Makau ruled.

He found no logical explanation as to why some FOPA members have successfully joined the Independent Policy Oversight Authority and not NLC or NPS.

“An order be and is hereby issued prohibiting the respondents by themselves , their employees, agents or any government agency from barring or disqualifying any applicant from recruitment as member of NLC on the grounds of having previously been a member of Parliament, county assembly, governor or having contested for parliamentary, county assembly or governor’s election.” 

 Makau said the reasons given by NLC and NPS are unreasonable and unjustifiable as those recruited serve as individuals and not members of political parties.

The commissions had argued that the two Acts preserving the qualifications for persons to be appointed to the commission are aimed at ensuring their independence from political party inclination and as such this cannot be said to be unconstitutional and the suspension is only for five years.

“I find no basis of saying after five years are over, one would be independent of a political party inclination,” the judge ruled.

He said the impugned provisions will curtail the number of those seeking electoral political positions and deal a major blow to democracy and constitutional space.

The judge further said the offending provisions of the Acts complained of are discriminative to the FOPA members because they degrade their dignity and deprive them their economic and social right and freedoms.

FOPA argued that Section 8 (3) of the NLC discriminates against them as it stopped them from applying for recruitment as members of the NLC. 

Section 8 (3) of the NLC disqualifies immediate former MPs and MCAs as well as former governors from eligibility as members of the commission.