There is animated debate as to whether public workers forced out of office when their jobs are abolished by the Constitution are entitled to their contractual dues, and more specifically, for the unexpired term of their contracts.
I have read views from my colleagues in the legal profession to the effect that yes, their property rights had crystallised through the contracts held, and yes, the taxpayers will have to fork out hundreds of millions of shilling to mollify these erstwhile office- holders.
I have heard it said that there are as many interpretations to the law as there are lawyers. My considered opinion on the matter, on the strength of constitutional theory and practice, is that a public office is not the property of the office-holder.
The power to create an office under the law generally includes the power to modify or abolish it. The most revered of all employers, the people, in the exercise of their sovereign power to reconstitute the organs of State may, without limit, send the entire bureaucracy and elected leaders home, without suffering any pecuniary embarrassment.
On August 27, 2010, Kenyans abolished some offices and reconstituted others. The public officers affected were but mere agents and trustees. They could only claim a private right to services rendered but unpaid.
Public offices are created to meet the needs of the people, and when such need ceases to exist, there is no obligation or necessity to continue an office.
The power to abolish an office may be exercised at any time as there is no obligation to sustain such an office merely for the sake of the office-holder.
By abolishing the office, the incumbent suffers no breach of constitutional rights or property interest. Further, after the abolition of the office, there cannot be tenure to a non-existent office and hence the question of breach of contractual rights cannot arise.
In the US, for example, both statutory and constitutional offices can be abolished by the body that created them.
In Eckerson v City of Des Moines, 137 Iowa 452, the Iowa Supreme Court observed as follows:
‘‘Public offices are created in the interests of the general public, and not for the benefit of any individual. And no one in possession of an office has a constitutional right to remain therein for the full period of the term for which he was elected. And as no contract exists in favour of the incumbent of an office, it does not remain for him to quarrel with the method of procedure adopted.
‘‘In the case of statutory office, the Legislature may even abolish the office, and with the taking effect of the law providing thereof, the right of the incumbent to further act ceases eo instanti, notwithstanding the term for which he was elected has not expired.’’
In his treatise, The Constitutional Law of the United States, Westel Woodbury Willoughby restates the law to the effect that public office is not a property or contractual right. He states as follows:
‘The Supreme Court of the United States has held in an unqualified manner, that as between State and an office-holder, there is no contract right possessed by the latter either to the office or to the salary attached to it, and that therefore, in the absence of express constitutional provision otherwise, his removal from office or the abolishment of the office itself gives to him no cause of action against the State.’’
Where the claim is by two or more persons to state office, Willoughby states as follows:
“When the dispute is not one between the State and one of its officers, but between two individuals each claiming the office and its emoluments, when, in other words, the office itself is not disturbed nor the salary changed, the question is a different one.
‘‘Then, it would seem, the office has often to be treated as a piece of property of which the owner may not be deprived without due process of law even by the State itself . . . .’’
The cases of retired Justice Aaron Ringera and Prof Patrick Lumumba on the matter of ‘‘exit emoluments’’ are clearly distinguishable.
Should our new Supreme Court Justices render an advisory opinion to the effect that the next general elections shall be held in August, 2012, our lawmakers, too, may have their answer to the question of ‘‘exit emoluments’’ for their remaining term.
Ms Kambuni is an advocate of the High Court and a member of the Task Force for Devolved Government. ([email protected]).