•Judge says public officers shall not publicly indicate support for or opposition to any political party or candidate in an election.
•He further holds that public officers cannot be founding members of a political party or be eligible to hold office in the same.
Image: FILE
Civil servants must choose between their current jobs or working with political parties as officials, a judge has ruled.
Justice Nduma Nderi said public officers with active roles to play in the management of political parties are bound to relinquish their postings in the civil service.
The judge made this pronouncement on December 9 in a ruling on a petition by Prof Ben Sihanya, who has locked horns with the EACC over his appointment as the chair of the ODM disciplinary committee.
The EACC, in a September 2020 advisory, gave the University of Nairobi don an opportunity to elect to remain a lecturer at the university or opt to chair the committee of the Raila Odinga-led party.
Nderi agreed with the commission, saying the political neutrality of a public office is compromised when an official holds an appointed office of a political party.
“Holding the office of lecturer at a public university and at the same time holding an appointed office of political party amounts to performing daily or continuous political activities,” the judge ruled.
The judge said this applies despite the fact that a lecturer enjoys academic freedom and is not barred from expressing his or her political opinion.
He said this applies as long as the remuneration and benefits of the officer are payable directly from the Consolidated Fund or directly out of money provided by Parliament.
“It is beyond peradventure that a lecturer at a public university, such as the University of Nairobi, is primarily remunerated and paid benefits out of money provided by Parliament,” the judge held.
The justice said the conclusion rests within the meaning of Section 23 (2) of the Leadership and Integrity Act as read together with Section 12 (1) (c) of the Political Parties Act.
“The court finds that the action by the EACC in giving Prof Sihanya the opportunity to elect to remain a lecturer or opt to become ODM disciplinary committee chairperson was lawful, fair, just and in accordance with the LIA (Leadership and Integrity Act),” Nderi held.
He said in the prevailing circumstances, the petitioner is deemed to be a public officer since he falls in the realm of a person whose remuneration and benefits are paid out of money provided by Parliament.
“Accordingly, the petition lacks merit and is dismissed with no order as to costs,” the judge said in the ruling delivered virtually from Nairobi
A number of civil servants are angling for various elective seats, while some are already housed in political parties as strategists and advisers.
At least nine Cabinet Secretaries have been singled out for engaging in politics ahead of the 2022 vote.
They include Devolution CS Eugene Wamalwa, Agriculture’s Peter Munya, Ukur Yatani (Treasury), Sicily Kariuki (Water), Joe Mucheru (ICT), Mutahi Kagwe (Health), Fred Matiang’i (Interior), Keriako Tobiko (Environment), and John Munyes (Petroleum).
The ruling may also come as a blow to a number of public university lecturers who are already working as part of think-tanks of the country’s main political formations.
Sihanya, in his petition, had argued that there was no conflict between his holding the position of professor at UON and that of ODM, which he argued was non-political.
His take was that the ODM disciplinary committee chairman job – to which he was named in August 2020 — is not elective and, was one of an independent arbiter of disputes among party members.
Prof Sihanya argued that he was not a public officer since worked "for an independent parastatal", hence, the provisions of the Political Parties Act did not apply to him.
But the judge, citing Article 260 of the Constitution, held that he (Prof) is prohibited to hold office in a political party.
Nderi said the question in the Prof Sihanya case was whether he is a public officer within the meaning of the Political Parties Act, and therefore violates the Leadership and Integrity Act.
The judge said that the meaning of the term public officer and public office, as given in Article 260 of the Constitution, applies to civil servants.
The law provides that a public officer is “any state officer or any person other than a state officer who holds a public office".
The question of politicking civil servants and Cabinet Secretaries has elicited a huge debate in the ongoing activities ahead of the 2022 general elections.
IEBC found itself in a tight spot recently after declaring that CSs should keep off campaigns, having given them a green light during the 2017 elections.
It argued that Section 23 of the Leadership and Integrity Act, 2012, which gives CSs and CECs a lifeline to engage in political activity, is not sufficient.
(Edited by V. Graham)