Constitution silent on whether MP Waluke will lose seat

Following his sentencing Thursday, it is not clear whether Sirisia MP John Waluke will lose his seat.

On the face of it, it is a given that the MP will lose it if he serves the term. But a second look at the Constitution and other enabling laws suggest that the matter is not so straightforward - there is no express provision that states he should if he serves the time.

While the old Constitution was clear that a sitting MP would lose his or her seat if sentenced to a jail term of more than six months, the 2010 Constitution is ambiguous in its provisions, subjecting such decision to the whims of other statutes, and legal interpretations.

Article 103 of the Constitution lists the circumstances under which a sitting MP can lose his seat. It states that an MP loses a seat when he or she dies, is absent from eight sittings of the relevant House without permission and if removed from office under the Leadership and Integrity Act.

Other circumstances include resignation from Parliament or the political party that sponsored him or her to Parliament, or if an independent MP joins a political party.

This means that the question of whether Mr Waluke will lose his seat will be determined by anti-corruption and integrity laws. Whether it is the Leadership and Integrity Act, the Election Offences Act or the Anti-Corruption and Economic Crimes Act, there is no direct provision that suggests that Mr Waluke should lose his seat.

However, Rarieda MP Otiende Amollo said the question of whether the MP will survive through his term must be looked at beyond the Constitution.

“The provisions exist in several statutes and he can’t serve as an MP while in jail,” he said, but he could not cite a specific clause.