Court deals a blow to governors eyeing presidency in 2022 polls

Governors eyeing the presidency in the 2022 polls will have to resign from their current positions six months before the election date, the High Court has ruled.

Failure to resign, the governors who include Wycliffe Oparanya,  Kivutha Kibwana, Hassan Joho, Mwangi wa Iria and Alfred Mutua, who have declared their interest for presidency, will be ineligible and will not cleared by the electoral commission.

According to Justice Weldon Korir, the only holders of political office who can stand in a presidential election without relinquishing their offices are the President, the Deputy President or MP.

“Not even a governor or deputy governor is exempted by the provision. The reason is that in the constitutional matrix, governors and deputy governors belong to the same family with MCAs,” said Justice Korir. This means that an MCA cannot participate in a presidential election before quitting his seat.

Unbreakable link

The judge said an election is a process and there is an unbreakable link between nominations and elections for without nominations, there cannot be elections, meaning the governors aspiring to vie for presidency have to resign prior to the party primaries.

The same case applies to MCAs harbouring dreams of becoming president or MPs. Justice Korir said for an MCA to vie for MP’s seat, he must relinquish his position to be cleared by the Independent Electoral and Boundaries Commission (IEBC).

He said nomination to contest MP seat is an election within the meaning of Article 99 of the constitution.

“For one to vie for any political seat established by the constitution, they must be qualified to do so. In nominating candidates for various seats, political parties need to ensure that the candidates meet the requirements of the constitution and the Elections Act,” judge Korir said.

At the time of receiving nomination papers from candidates, he said, the IEBC is duty-bound to confirm that the candidates are not disqualified from contesting.

Hence, he said clearance by the electoral body to vie for an election is part and parcel of the election process.

“In determining whether to accept or reject nomination papers of a candidate, the IEBC bases its decision on the qualifications and disqualifications in the constitution and any other constitutionally compliant law,” said Justice Korir.

The judge added that according to Clause 2(a) of Article 193 of the constitution, State officers or public officers, other than members of county assemblies, are disqualified from vying for MCA.

“For purposes of clarity, this means that the President, the DP or a MP, being State officers and not being exempted by the provisions of Article 193, are barred from being nominated by IEBC to vie for the membership of a County Assembly,” said the judge.

Nomination papers

They can only qualify if they resign their positions before presenting their nomination papers to the IEBC, Justice Korir.

He made the findings while overturning the election of Gatundu North MP Wanjiku Kibe, who vied for the MP’s seat before resigning as an MCA in Kiambu County Assembly.

“The IEBC has no authority to accept the nomination papers of a candidate barred from contesting for membership of any of the two Houses of Parliament by Article 99(2) of the constitution. Doing so amounts to a violation of clear constitutional provisions,” said Justice Korir.

Regarding the Gatundu North petition, the judge said the undisputed evidence placed before court by the petitioner, Mr Kung’u Waibara, demonstrated that Ms Kibe was a nominated MCA on June 27, 2017 when her nomination to run for the National Assembly seat was gazetted by IEBC.

“It therefore follows that at the time of her election on August 8, 2017 she was ineligible for election as Member of Parliament as she was disqualified by Article 99(2)(a) and (d) of the Constitution from contesting. Her participation in the election and her subsequent election was therefore unconstitutional, null and void,” ruled justice Korir.

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