Politics: Civil servants can now resign earlier

The desire for a career change whenever an opportunity presents itself through a by-election has been the dream of most civil servants.

However, Section 43(5) of the Elections Act, 2011 which states that a public officer must resign seven months before a by-election date if he or she wishes to contest, has always been a hindrance.

This will however not be the case in future , thanks to a recent ruling which found this law to be discriminatory and therefore unconstitutional.

The concern brought to court was whether the period set for resignation by Section 43(5) is reasonable when no specific date of a by-election can be set in advance.

The civil servants through the Union of Kenya Civil Servants (UKCS) and Wilson Kang’ethe Mburu, who was a public officer serving in the National Treasury until his resignation on February 9, this year, had filed separate petitions arguing that the limitation was not reasonable given the nature of a by-election which is uncertain and unpredictable in comparison to a general election.

They filed their respective cases against the Independent Electoral and Boundaries Commission (IEBC) and the Attorney General. The two cases were consolidated and a judgment delivered by High Court Judge Isaac Lenaola on March 18, this year.

Justice Isaac Lenaola concluded that Section 43(5) of the Elections Act is unreasonable in its limitation of the rights of public officers under Article 38(3)(c) of the Constitution to vie in a by-election and as such is unconstitutional.

This is because as can be observed from the provisions of Article 101(4) of the Constitution, a by-election is conducted subject to a vacancy arising in circumstances contemplated under Article 103 of the Constitution.

RIGHT TO CONTEST

Taking circumstances such as death, resignation, disqualification and others, Justice Lenaola said: “It would be difficult to predict and foresee the possibility of a vacancy arising in Parliament or a County Assembly. so that a public officer can prepare to contest in that by-election as such circumstances prove to also be uncertain.”

Furthermore, the law as stipulated in Article 101(4)(b) of the Constitution, is clear that a by-election must be held within three months of a vacancy arising.

“How then can one say that seven months is reasonable and justifiable, when the period envisaged under Section 43(5) is longer than that stipulated under Article 101(4)(b) of the Constitution?” wondered Justice Lenaola.

 “That contradiction, and the limitation, is certainly unreasonable and I am unable to find any justification for it specifically in the case of a by-election.”

He explained that the contradiction created by Section 43(5) and 2 of the Elections Act, cannot override the provisions of Article 101(4) (b) of the Constitution.  Article 2 of the Constitution is clear that the Constitution is the Supreme Law and any law inconsistent with the Constitution is void to the extent of that inconsistency.

“I do not see any justification for denying a public officer the right to contest a vacant seat in by-election if he has resigned as soon as a vacancy has occurred and that is as soon as the Speaker of either House of Parliament has given notice of the vacancy to the IEBC under Article 101(4)(a) of the Constitution. 

To hold otherwise would be to promote an absurdity that was never intended by the drafters of the Constitution,” said Justice Lenaola.

The law will apply to civil servants seeking to participate in a general election since in that context, there is certainty as to the date of such an election because Article 101(1) of the Constitution states, “a general election of members of Parliament shall be held on the second Tuesday in August in every fifth year.”

UNFAIR ADVANTAGE

“Reading that provision, it means that a public officer has sufficient notice of an election date and can formerly resign within the period given which I maintain is otherwise reasonable,” Justice Lenaola explained. 

Taking into account the requirements of the Constitution and the Elections Act as well as related legislation like the Political Parties Act, 2011, he is convinced that the period is sufficient for a candidate to prepare himself for an election and in any event, it is only a cut-off point and one may voluntarily choose to resign earlier as is the case in all employment situations.

According to Lady Justice Mumbi Ngugi: “The intent behind these provisions was to lessen the considerable influence that public officers have historically yielded in public affairs which was deemed to give them an unfair advantage over others in the electoral context.”

Given his findings on Section 43(5) of the Elections Act as regards by-elections, Justice Lenaola issued a permanent injunction restraining the IEBC from barring a public officer from contesting a by-election under Article 101(4) of the Constitution on grounds that the public officer did not resign from office within seven months of the by-election as such a period would be untenable and impractical under the said Article 101(4) of the Constitution.

He also directed that a copy of the judgment be served on the IEBC and the Attorney General so that they can move with haste and address the anomaly created by Section 43(5) of the Elections Act with respect to a by-election.

In opposing the petition filed by UKCS and Mr Kang’ethe, the IEBC had told the court that Section 43(5) of the Elections Act was enacted to prevent the culture of interference in the electoral process by public officers and also to curb misuse of public funds by public officers in the electoral process.

The electoral body stated that the mischief sought to be cured by the provisions of Section 43(5) of the Elections Act can only be understood if that Section is read together with the provisions of Section 12(1) (c) and (d) of the Political Parties Act which precludes a public officer from engaging in political activity that may compromise or be seen to compromise the political neutrality of that person’s office or publicly indicate support for or in opposition to any political party or candidate in an election.

In addition, Section 23(3) of the Leadership and Integrity Act prohibit public officers from engaging in the activities of any political party or acting as an agent of a political party or candidate in an election and publicly supporting or opposing any political party or candidate participating in an election.

REGULAR ELECTION

Accordingly, it was IEBC’s submission that, “public servants are elevated to a unique position of trust that requires them to meet certain standards in the discharge of their duties and are obligated to observe the values and principles of public service set out under Articles 73 and 232 of the Constitution.”

Attorney General Githu Muigai, had opposed the petition on grounds that given Articles 24 and 38(2) of the Constitution, the right to contest in an election, which includes a by-election, is not absolute.

In addition, he pointed out that a by-election is not a ‘regular’ election contemplated under Article 38(2) of the Constitution and therefore a limited right accrues to individuals who would want to participate in a by-election as candidates.

The state counsel explained that the statutory limitation imposed by Section 43(5) of the Election Act has the obvious intent of curtailing public officers from interfering with elections, fostering and maintaining the dignity of public offices and forestalling the possibility of deploying public resources in elections. 

The Attorney General further stated that if public officers were allowed to resign willy-nilly to contest by-elections, the State will suffer prejudice if no sufficient notice is issued by the resigning public officer. 

Further, that the time taken in getting a replacement for the resigning public officer would prejudice the State.