My intention is to look at the law about resigning before standing, and about campaigning – without having space here to include existing court cases.
WHY THE RULES?
Among the reasons for limiting the ability of people to stand or campaign is to avoid conflicts of interest between public officers’ personal interests and their responsibilities.
Avoiding such conflicts is the main thrust of Chapter Six of the Constitution on Leadership and Integrity, perhaps the Chapter most 'honoured in the breach', as they say.
One particularly relevant type of possible conflict of interest is when a public officer gets improperly, or excessively, involved in political issues or causes
A second reason is to prevent public money being spent on political matters. Thirdly may be to prevent public office holders abandoning their work in order to contest or campaign.
Finally, there may be a fear that people in public office who get embroiled in politics may be able to use their office to affect the conduct or even result of elections. Imagine how problematic it would be if a person working in the IEBC stood for election while hanging on to the job.
WHO IS AFFECTED?
Public officers are of various types. One group is 'State officers' — about 20 types. You can divide them into those who are elected, and those who are appointed. Generally you might say elected ones are allowed to be — indeed, are by definition — political.
The unelected ones hold generally senior posts that are just the sort that should be seen to be separate from politics. These include judges and magistrates, members of independent commissions, the Auditor General and the most senior military and police officers.
The Constitution’s language can be a bit confusing. It says that everyone holding a public office or a state office is a public officer. But state officers, despite being public officers, are not part of the 'public service'.
BEING APOLITICAL
Generally public officers are not supposed to “engage in any political activity that may compromise or be seen to compromise the political neutrality of the office”.
Specifically. they are not supposed to engage in activities of parties or candidates, be an agent of a party or candidate or publicly indicate that they are for against any party or candidate in an election (Section 23 of the Leadership and Integrity Act).
These prohibitions are very common, indeed traditional. But since tradition developed, some things have changed, notably recognition of human rights.
Public officers, like the rest of us, have freedom of expression, (Article 33), of demonstration (Article 37) and the rights of every Kenyan citizen “to campaign for a political party or cause” and “to be a candidate for public office” (Article 38).
These rights may be limited, but only for a good reason. Any limitation must be in law, and courts have held that 'law' needs to be clear. But is “in any political activity that may compromise or be seen to compromise the political neutrality of the office” really clear?
A bigger problem for the law is that under Article 24 — about limiting rights — any Act that tries to limit rights must show that limiting rights was intended, and the extent of limitation. This Act does not.
CABINET SECRETARIES
Under the old Constitution, ministers were politicians – in fact, MPs. On Tuesday, the Star told us that the President was going to use the entire public service (it meant CSs, PSs and public servants generally) to, among other things, market Raila as Uhuru’s successor.
This is clearly political, by any definition, and election-related. Most public servants would violate Section 23, if they did this (except for my doubt about its constitutionality).
But CSs would not — the section excludes them, and county executive members from the prohibition about elections. And when Senator [Samson] Cherargei said CSs are supposed to be civil servants, he was quite wrong. The Constitution says they are not.
Nor are CSs expected by the Constitution to be politically emasculated. They are not, as appointed State officers, supposed to hold office in a political party. But this is not the same as being generally politically involved.
STANDING FOR ELECTION
The Constitution says no one can be nominated to stand for President, if he or she is a public officer. But this does not exclude the existing President (aside from term limits), Deputy President and MPs –including senators.
Anyone else who holds a public office (including state office) would have to resign before being nominated as President. So governors, Cabinet secretaries, MCAss and members of the public service would have to resign — before the election — by nomination date.
For other elected posts, the constitutional rule is not about being nominated but being elected. The actual elections take place on a certain day — usually the second Tuesday in August. By that time, a candidate must have ceased to hold any public office.
That is not early enough to achieve the objectives mentioned earlier. What could be done? Different countries have different solutions. The main ones are either to require public officers to take leave for a period before the election, or to require them to resign.
In the Australian state of Victoria, for example, public servants do not have to resign. They may have to take leave. This depends on the nature of their work. If elected they have to resign. Some other countries require them to resign. In Australia, also there is an arrangement that may enable a public servant to resign but get their job back if not elected —provided they stood for a federal, not a state level, election.
Our Elections Act says that any public officer who intends to contest an election must resign at least six months before the election date. This does not apply to existing elected office holders.
However, the Constitution says that no one can be elected to Parliament if they are a state officer or other public officer, other than a member of Parliament. So a governor cannot be elected as MP or Senator. An ordinary Act of Parliament cannot let the governors off that particular hook. But they would have to resign before election day.
Now: the term of an MP, senator or MCA comes to an end at the beginning of election day. So the issue of being an MP, etc. when elected does not arise. But a governor’s term of office cannot end at the beginning of Election Day — that would mean there was no governor until the poll result was announced. Like the President, a governor must remain in office until a successor is elected. So a sitting governor cannot be elected to Parliament.
The Constitution also says no one can be elected as an MCA, if they are a state officer or public officer — other than already being an MCA. A person who can stand for MCA can also stand for governor. But a governor could not be elected as MCA.
Requiring officers to resign six months before the election means they must do so before they know if they will be able to stand, perhaps even before they have decided to do so.
But — as with the rules about being apolitical — arguably a rule requiring excessively early resignation violates the Article 38 right to stand. And there is again no clear statement of an intention to limit rights. For both reason the Elections Act may fall foul of the Constitution.
HOW ABOUT CSs?
Under the old Constitution, to remain ministers they had to stand as MP again. Clearly they had to be able to stand, and to campaign for themselves and their party. To require them to resign would have meant there was no government.
Now they are not MPs, and the Constitution says they could not be elected if still in office. But — since they are not holding offices that require them to be apolitical — is there maybe less reason to require them to resign long before the Constitution would require them to do so?
(Edited by V. Graham)
