PM, ministers in office ‘illegally’

Nearly the entire Cabinet, including Prime Minister Raila Odinga, will immediately lose their positions if President Kibaki endorses expert advice that the officials are in office illegally.

Commission for the Implementation of the Constitution (CIC) chairman Charles Nyachae has written to President Kibaki indicating that Mr Odinga, Vice-President Kalonzo Musyoka and all Cabinet ministers should have relinquished their posts a week ago — after the General Election.

Only President Kibaki should have been spared the chop, said Mr Nyachae.

He said the ministers were supposed to have quit on March 4, the General Election date.

“Our considered view is that neither the Prime Minister, the Vice-President nor Cabinet ministers are properly in office after March 4, 2013,” says Mr Nyachae in a two-page letter to the Head of State.

“It is important that they (ministers) do not transact any official business as this would be in violation of the Constitution,” says the letter dated March 11.

Any transactions or business conducted by the ministers on behalf of the government, Mr Nyachae said, would be null and void.

The commission noted that sending home the officials would “cause some challenges in the conduct of government business”.

But the tough decision had to be made to ensure all provisions of the Constitution were adhered to, especially considering that the new government is expected to stick to the new laws.

Different scenario

In the “Status of Cabinet Ministers Appointed before the 2013 General Election” letter, Mr Nyachae says the Constitution did not allow the officials to remain in office a single day after the polls.

This is a different scenario from the constitution that was repealed in 2010 that  allowed Cabinet ministers to continue to hold office until the appointment of one or more by the new administration.

“As you are no doubt aware, this provision together with other provisions of the repealed constitution ceased to have application after the first General Election conducted under the new Constitution,” says Mr Nyachae.

In addition, according to Section 12 (1) and (2) of the Sixth Schedule to the Constitution, “the persons holding the office of Prime Minister, Deputy Prime Ministers and the Cabinet continued to hold office and to serve in those positions only until the first General Election under the new Constitution”.

Mr Nyachae said Mr Kibaki was, however, protected under Article 142(1), which allows the President to hold office until the swearing-in of a new Head of State.

The new CIC proposal is likely to add a new twist to both Jubilee and Cord, whose ministers remain in office under the pretext that a new government is yet to be in place.

The Independent Electoral and Boundaries Commission last Saturday declared Jubilee’s Uhuru Kenyatta the winner of the presidential election, but the Cord leadership has opposed the result and promised to oppose it in court.

Mr Odinga, the Cord presidential candidate, was second in presidential vote results.