- In a statement, Wednesday, IEBC chairperson, Wafula Chebukati, however, said the commission will give further directions after the Court of Appeal gives an interpretation on the matter in March.
- However, the court of appeal is expected to provide direction on the matter in its finality including providing the period within which MCAs must quit to run as MPs.
Image: LUKE AWICH
The Independent Electoral and Boundaries Commission has said Members of the County Assembly should not resign by February 9.
This comes as a major reprieve to the hundreds of MCAs who have been wetting their appetites for parliamentary seats.
In a statement Wednesday, IEBC chairperson Wafula Chebukati, however, said the commission will give further directions after the Court of Appeal gives an interpretation on the matter in March.
The second highest court in the land is expected on rule on March 18 as to whether MCAs seeking parliamentary election should first resign.
This follows a petition by Gatundu North MP Ann Kibe who is seeking the nullification of a High Court ruling that found her in contravention of the law by running for the MP's seat before first resigning as MCA.
Chebukati clarified that MCAs will be required to resign but before submission of nomination papers to the IEBC for clearance to run for MP seats.
The IEBC returning officers are expected to receive nomination papers for MP aspirants between May 30 and June 2. MCAs are expected to resign then if they seek to become MPs.
"The commission wishes to clarify that, according to Article 99(d) of the constitution of Kenya 2010 as read together with section 43(5) and (6) of the elections Act, MCAs who wish to contest as members of parliament should not resign by February 9, 2022," Chebukati said.
He went on: "...but should resign before submitting their nomination papers to the returning officers to contest as members of Parliament."
Article 99(2) (d) of the constitution qualifiers MCAs from being elected as MPs, a provision that portents far-reaching consequences on aspirants in the next general election.
However, the Court of Appeal is expected to provide direction on the matter in its finality including providing the period within which MCAs must quit to run as MPs.
Earlier, several quotas had requested them to resign led by National Assembly Speaker Justin Muturi and UDA party secretary general Veronica Maina.
However, UDA later withdrew the requirement and said it was awaiting directions from IEBC.
They had quoted article 99 of the Constitution.
In May 2021 the High Court held that a sitting President, MP, governor or MCA who intends to vie for any position in the next general election upon the expiry of the current electoral cycle, does not need to resign before that general election.
On Wednesday MCAs umbrella body instructed its members seeking higher elective positions to disregard any calls to have them resign ahead of the August 9 polls.
County Assemblies Forum on Wednesday told 90 MCAs seeking higher political positions that there is no law requiring them to resign by February 9.
CAF secretary general Kipkurui Chepkwony said MCAs are only required to resign in case of by-elections.
Kipkirui took a jibe at Muturi over recent remarks that MCAs must resign six months to general election.
Muturi—citing Article 99 clause (2)— cautioned MCAs to tender in resignation by February 9.
But according to Kipkurui, the courts had pronounced themselves on the matter.
"As the Speaker of the National Assembly, he cannot be seen to be contradicting the courts on matters interpreting the Constitution or the statutes, especially when the courts have complete jurisdiction in all matters of interpreting the laws of the country," Kipkirui said.
He argued that Article 99 has already been interpreted by the courts in the case of Kennedy Irungu Ngodi & Another v Mary Waithera Njoroge and 11 others ( petition No. E369 of 2020).
"The learned judge stated that ' Article 99 (2) did not disqualify a sitting MCA from contesting for MP," he said.
"However, in case a vacancy occurred in the National Assembly and there is a by-election, then the MCA must first resign in order to contest for that seat."
"In light of the forgoing MCAs across the country should remain calm. No one should be shaken by such statements."
He was addressing a press conference at the Forum's headquarters, Nairobi.
Mt Kenya MCAs caucus national chairman Charles Mwangi Nga’ng’a had told Star on phone interview that MCAs form part of public servants and should not resign maintaining it’s unconstitutional.
He said MCAs, senators, MPs and governors are public servants while cabinet ministers, permanent secretaries and chief administrative secretaries follow under civil servants and are the ones supposed to resign.
“All elected leaders fall under public servants and aren’t supposed to resign, why should an MCA resign but not MP or senator and yet they are elected by the same people?, All government appointees are civil servant and are the one constitution states should resign," he said.