Civil servants eyeing political seats in the August 9 General Election have two weeks to resign.
This is after the High Court quashed a voter’s bid to stop the electoral agency from implementing a law that makes it mandatory for public officers to leave office six months to a General Election.
Mr Eric Omari Wanyamah wanted the High Court to declare Section 43(5) of the Elections Act unconstitutional on grounds that it discriminates against civil servants.
But Justice Anthony Mrima struck out the application after finding that a similar matter was determined 10 years ago by Justice Isaac Lenaola, who is now a judge of the Supreme Court.
“The application and the petition are struck out as the issues raised are substantially the same as those determined in 2012 in the case filed by Charles Omanga and Patrick Njuguna. That judgment was never appealed and the orders are deemed final,” said Justice Mrima.
He was ruling on an objection by Independent Electoral and Boundaries Commission (IEBC) lawyer Mirriam Ng’ang’a, who argued against hearing of the petition. Mr Wanyamah was seeking a declaration that it is unfair and discriminatory for public officers to resign in readiness to vie for elective seats.
Section 43(5) provides that: “A public officer who intends to contest an election under this Act shall resign from public office at least six months before the date of election”.
The petitioner contended that the legal provision is punitive and has a negative impact on youthful aspirants working in the government as they stand to lose their jobs should they join politics. It is discriminatory, he added, to force civil servants to resign while their rivals in the private sector and in political positions remain in office.
“The disputed law accords an unfair advantage to some people, breaches the requirement for fairness, equality and proportionality and therefore it is unconstitutional,” stated Mr Wanyamah, adding that the legal provision violates voters’ rights to choose leaders. But Justice Mrima said the petition was against the principle of “res judicata”, which precludes courts from dealing with issues that have already been determined.
The judge noted that the IEBC was a party in the suit where Justice Lenaola ruled that the disputed law was constitutional.
In the judgment dated August 2, 2012, Justice Lenaola termed the six months’ resignation period justifiable, reasonable and sufficient for a candidate to prepare himself or herself for an election.
“They (civil servants) cannot have one leg in public service and another in their elective area. The law was designed to aid them make up their minds on where they want to maximise their energies,” ruled Justice Lenaola.
“Six months before the election date is sufficient time for them to prepare to meet their fate at the ballot box. A longer period would be unreasonable and a shorter period [even more so],” he stated.
Taking into account the requirements of the constitution and the Elections Act as well as related legislation such as the Political Parties Act, 2011, the judge said he was convinced the period was sufficient for a candidate to prepare himself for an election.
In any event, he stated, the period stipulated in law was only a cut-off point and one may voluntarily choose to resign earlier as is the case in all employment situations.
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