Raila party defies parties registrar, allows lawmakers to vie for seats

ODM has vowed to defy the Constitution Implementation Commission and the Registrar of Political Parties and allow its ministers and MPs to vie for party positions in elections that start this week.

The party would have a new leadership had ministers and MPs locked out from the elections expected to start on Friday as the party prepares for next year’s General Election.

Article 77 (2) of the Constitution bars appointed State officers from holding political party offices.

And Section 15 of the Political Parties Act says a person who is a public officer shall not be eligible to hold office in a political party.

Quoting these provisions, CIC chairman Mr Charles Nyachae and registrar of political parties Ms Lucy Ndung’u said ministers, MPs and other state officials should not vie for party positions.

But Prime Minister Raila Odinga, who is the ODM leader, has opposed that position.

ODM’s elections board secretary Mr Joseph Misoi also asserted that the law does not stop ministers and MPs from participating in polls before the next General Election when ministers will not be MPs and the legislators will have a more defined role.

Distinct role

“There will be a more distinct role between the Executive and Legislature,” Dr Misoi said.

In a letter to Mr Nyachae, Mr Caroli Omondi, the chief of staff in the PM’s office, said in post-transition period, elected state officers such as the President, Deputy President, MPs, senators, members of county assemblies or county executives, governors or their deputies will be free to hold positions in political parties.

“This distinction between elected and appointed state officers is premised on Article 4 (2) of the Constitution which declares that the Republic of Kenya is a multi-party democratic state,” Mr Omondi said.

He added that Article 152 of the Constitution, which defines the composition of the Cabinet to include cabinet secretaries, is not yet in force and cannot be invoked in relation to current ministers with respect to requirements of Article 77 (2) of the Constitution.

He added that Section 12 (2) of the Sixth Schedule provides that persons occupying the offices of the Vice-President and deputy PM, or holding a position in the Cabinet or as an assistant minister immediately before the effective date shall continue to serve in accordance with the former constitution until the first General Election unless they vacate or are removed from office in accordance with the former constitution and the National Accord and Reconciliation Act, 2008.

The provisions of the old constitution, he said, continue to regulate the current Cabinet members, who are ministers by virtue of first having been elected or nominated to Parliament.

“Article 260 defines state officers to include cabinet secretary.

The current ministers have not made the transition to cabinet secretaries and will not do so during the transition period.”

Mr Omondi asked the CIC to seek interpretation on the applicability of the Article 77 (2) from the courts.

Giving his legal opinion following ODM’s request, Attorney-General Amos Wako said Article 77 (2) of the Constitution was never meant to apply to the current Cabinet ministers and assistant ministers.

“It also appears to have been crafted with the next Cabinet, which shall comprise cabinet secretaries appointed from outside Parliament, in mind. This, in my opinion, should remain status quo until after the next General Election,” Mr Wako said.

Mr Odinga said there’s a difference between “appointed” and “elected” state officers and that ministers and MPs should continue holding party offices.

Among ODM leaders holding ministerial positions are Prof Anyang’ Nyong’o (secretary-general), Joe Nyagah (vice-chairman) and assistant ministers Aden Duale, Ramadhan Kajembe and Elizabeth Ongoro.

ODM chairman Mr Henry Kosgey was suspended from his Industrialisation docket following allegations of irregularities in the ministry. A case on the matter is pending in court.

Deputy secretaries-general are Energy assistant minister Mohamed Ali, Defence assistant minister Joseph Nkaisery and Wundanyi MP Thomas Mwadeghu.

Public Service minister Dalmas Otieno is deputy treasurer as is Moyale MP Mohamud Maalim Mohamed.

Kisauni MP Ali Hassan Joho is organising secretary and is deputised by Wajir North MP Mohamed Gabow and his Ainamoi counterpart Benjamin Langat.

Nambale’s Chris Okemo is the secretary for Public Policy and Economic Affairs, while assistant minister Josephat Nanok is in charge of international affairs and MP Chachu Ganya secretary for special interest groups.

Regional Development minister Fred Gumo is the convention chairperson.

Other ODM officials such as former MPs Reuben Ndolo and Philip Okundi are also state officers heading parastatals.

Nairobi lawyer J.M. Waiganjo says barring ministers from holding party posts would deny them an advantage in next year’s elections as they would be unable to mobilise grassroots support.

The new law enables political parties to operate effectively without political baggage.

Ministers holding party offices have in the past been accused of interfering with nominations and having an advantage over other candidates in elections.

“Leadership at political party level will be elected on merit and not favouritism. Parties will now become political institutions and not private entities. They will also be more objective and concentrate on getting political power,” Mr Waiganjo said.

Dr Misoi, a former Eldoret South Member of Parliament, admitted that ministers and MPs who hold party positions are perceived to have money and influence nominations .

The ODM elections, which have been postponed thrice, are expected to run from July 1 to July 4. The elections will be held from the sub-locations to the branch levels.

Promote democratic management

The date for the national elections to be announced later.

Dr Misoi said the elections are meant to align the party organs with the Constitution, devolve the structures to the grassroots and promote democratic and accountable management of its affairs.

The elections are also expected to enhance the participation of members from the grassroots to the national level in making party decisions.

He said only loyal and committed members of the party would participate in the elections.

A group led by deputy party leader Mr William Ruto has vowed not to participate in the elections, having shifted their allegiance to UDM.