- This is a temporary reprieve for civil servants as courts suspend law requiring them to quit.
- Public Officers eyeing elective seats on August 9, are supposed to resign by February 9.
Image: FILE
Public Officers eyeing elective seats in the August 9, General Elections have received a temporary reprieve from being required to resign by February 9.
Quitting is required by election law, stating that public officers seeking to contest in the general election must quit at least six months to the polls.
However, Employment and Labour Relations Court Judge Monica Mbaru has ordered that the section of the Elections Act providing for civil servants' mandatory resignation be stayed.
‘That pending service and attendance of the respondents herein the operation of section 34(6) of the Elections Act is hereby stayed,” ordered Justice Mbaru.
The judge gave the order following an application by Julius Wainaina who moved to the court on December 21, seeking the suspension of the Act.
The matter is set for a hearing on January 24, 15 days to the February 9 deadline for public officers to resign if they intend to contest in this year's general elections.
This is a major win for the public officers-including Cabinet Secretaries-eyeing political seats in the August 9 polls.
At least seven CSs have indicated they want to join elective politics.
However, the law protects state officers including the President, the Deputy President and members of Parliament from resigning.
Image: The Star
The Independent Electoral and Boundaries Commission cannot disqualify public servants seeking public office on grounds that they did not resign six months prior to the August polls.
However, the court may vary the orders as it deems fit once the matter comes up for hearing later this month.
In 2017, Justice Njagi Marete declared section 43(5) and (6) as unconstitutional and directed IEBC not to bar candidates who do not resign six months to polls.
"A declaration is hereby issued that under Article 24(1)(2) of the Constitution, the requirement that a public officer who intends to contest an election resigns six months before the date of the election is unreasonable and unjustifiable in a democratic society," the judge said.
He then suspended a directive by the Chief of Staff and Head of Public Service dated December 1, 2016, which required public servants seeking elective positions to vacate office on or before February 7.
The petitioner, Eric Cheruiyot, argued that the sections of the Elections Act 2011, discriminate against public servants with political ambitions as it targets them for contract termination.
However, IEBC chairman Wafula Chebukati said last month that the order that barred the IEBC from forcing civil servants to resign six months to the polls was lifted.
He said that in the Court of Appeal case at Nyeri, civil application No 62 of 2017 County Government of Embu, and another v Eric Cheruiyot and 15 others the orders stayed.
This comes even as a secondary school teacher from Kisii moved to court seeking to stop IEBC from disqualifying him if he does not resign by February.
James Oroko a teacher at Nyakeyo Mixed Secondary School wants the court to bar IEBC from implementing the Act.
Through lawyer Harun Ndubi, Oroko says he is just like any other aspiring ordinary citizen wishing to exercise his constitutional rights to vie in the forthcoming General Elections slated for late this year.
“It is obvious that by resigning from my employment, I will have lost my source of livelihood and resources to support my political ambition whereas the special members of the public services excluded from the pre-requisite shall continue to enjoy their salaries,” he argues.
Public officers hoping to run for election have barely 34 days to resign so they are not in contravention of the law.
CSs, Principal Secretaries, Chief Administrative Secretaries, parastatal chairpersons, board members and directors of state agencies are among the top public officers expected to resign next month.
Some Ambassadors and heads of missions abroad who want to join politics must also resign by next month.
Most high-flying public officers were handed a lifeline by President Uhuru Kenyatta who appointed them after they lost in the 2017 polls.
It is feared the mass exit would render some state agencies dysfunctional, tipping the country for a government shake-up ahead of the polls.