• Muturi expressed fears that failure to comply with the law will lead to one being disqualified.
•Lawyer Omari argued that after the 2017 General Election, the issue went to court and those MCAs who contested for MPs were said to have contravened the law.
Image: MUSEMBI NZENGU
Confusion rocks on whether MCAs seeking parliamentary positions in the August 9 polls are required to resign by Wednesday.
This comes as National Assembly Speaker Justin Muturi on Tuesday announced that MCAs seeking parliamentary positions should resign by Wednesday to avoid being disqualified to vie for the said seats.
“I am just taking the liberty to advise the Democratic Party National Executive Council that under Article 99, Clause 2, Paragraph D of the Constitution, a sitting Member of the County Assembly must resign six months to the election date, which is today February 9,” he said.
He highlighted Article 99 of the Constitution, Clause 2, Paragraph D, which states that a person is disqualified from being elected a Member of Parliament if the person is a member of a county assembly.
Muturi expressed fears that failure to comply with the law will lead to one being locked out of the elections.
The Speaker was speaking after he attended the party’s National Executive Council briefing held in Nairobi.
Constitutional Lawyer Danstan Omari argued that after the 2017 General Election, the issue went to court, and those MCAs who contested for MP seats were said to have contravened the law.
He, however, explained that it is a setback for the MCAs as they will be fighting for positions of their seniors while outside the office.
"Unfortunately, for MCAs they have to resign. But this is a paradox because MPs are not executive members, and according to the law, they will continue serving, but MCAs will have to vacate office," Omari added.
This has resulted in more confusion following the Court of Appeal ruling o Tuesday that exempted MCAs, President, Deputy President, Governor and MP from resigning six months before the next general elections.
The ruling was issued after Julius Wainaina Kariuki sued the Attorney General and IEBC, claiming that the electoral body cannot disqualify public servants seeking public office on grounds that they did not resign six months before the polls.
He argued that the provisions of section 43(5) and (6) of the Elections Act, 2011, were discriminatory.
In its ruling, the court noted the limitation of the right to equal treatment as set out in sections 43(5) and (6) of the Elections Act, 2011 does not discriminate against State and/or public officers seeking to join elective politics and is therefore reasonable and justifiable.
Section 43(5) of the Elections Act, 2011 provides that a public officer who intends to contest for an elective position shall resign from public office at least six months before the date of the election.
Section 43(6), however, provides that this does not apply to the President, the Deputy President, prime minister, county governors, deputy county governors, members of parliament, and members of the county assembly.
Court case
Former Gatundu North MP Clement Waibara and incumbent Wanjiku Kibe have been in a court battle since 2017.
Waibara sought the nullification of Wanjiku's win, claiming she did not qualify to vie for the seat as she did not resign as a nominated MCA.
Wanjiku was nominated as MCA to the Kiambu County Assembly by TNA in 2013.
On October 7, 2020, Wanjiku’s seat was declared vacant by High Court judge Weldon Korir.
The judge ruled that she was illegally elected because, at the time of submitting her nomination papers, she was still a nominated MCA.
Waibara then challenged her election and the Court of Appeal directed that the matter be heard by a constitutional court.
However, Kibe moved to the Supreme Court, where the case is awaiting final determination.