TIMELINES WITHIN WHICH A PUBLIC OFFICER MUST RESIGN FROM PUBLIC OFFICE BEFORE VYING FOR A POLITICAL OFFICE - OFFICE OF COUNTY GOVERNOR

1.       INTRODUCTION

In this advice, we determine the law on timelines within which a public officer must resign from public office before vying for a political office, in this case, the office of the County Governorship. In preparing this advice, we have considers:

a)       The Constitution of Kenya;

b)       The Election Act, Act No. 24 of 2011; and

c)       Independent Electoral and Boundaries Commission Act, Act 9 of 2011.

2.       THE ADVICE

2.1.  EXECUTIVE AUTHORITY IN COUNTY GOVERNMENT

The election to governorship in a devolved government is envisaged and governed by the Constitution of Kenya and the Election Act, Act No. 24 of 2011.

The Constitution dictates that executive authority in the county government shall vest in the County Executive Committee. (See Article 179 (1) of the Constitution)

The County Executive Committee is composed of the County Governor, Deputy County Governor and such other persons as the county governor may nominate with the approval of the National Assembly. (See Article 179 (2) of the Constitution)

The County Governor and the Deputy County Governor are the Chief Executive and Deputy Chief Executive Officers of the county, such that when the county governor is absent, the Deputy County Governor acts as the county governor. (See Article179 (4) of the Constitution)

Meanwhile, members of a county executive committee are accountable to the county governor for the performance of their functions and exercise of their powers (See Article 179 (6) of the Constitution)

2.2.  ELECTION OF COUNTY GOVERNOR

Article 180 (1) of the Constitution dictates that the county governor shall BE DIRECTLY ELECTED BY THE VOTERS REGISTERED IN THE COUNTY, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year.

TO BE ELIGIBLE FOR ELECTION AS COUNTY GOVERNOR, a person MUST BE ELIGIBLE FOR ELECTION AS A MEMBER OF THE COUNTY ASSEMBLY. (See Article 180 (2) of the Constitution.)

2.3.  ELIGIBILITY FOR ELECTION AS MEMBER OF THE COUNTY ASSEMBLY

To be eligible for election as a member of a county assembly, the prospective candidate must:

1.       Be registered as a voter;

2.       Satisfy any educational, moral and ethical requirements prescribed by the Constitution or an Act of Parliament; and

3.       Either:

3.1.  be nominated by a political party; or

3.2.  is an Independent Candidate supported by At Least Five Hundred Registered Voters in the ward concerned

SECTION 43 (5) of the Election Act, 2011 stipulates that a public officer who intends to contest an election under the act must resign from public office at least seven months before the date of election.

Fundamentally, however, THIS SECTION “SHALL NOT APPLY TO- (a)  the President; (b)  the Prime Minister; (c)  the Deputy President; (d)  a member of Parliament; (e)  A COUNTY GOVERNOR; (f)  a deputy county governor; (g)  a member of a county assembly.” (See Section 45 (6) of the Election Act, 2011)

Subject cited exceptions, the Constitution dictates that a holder of a public office cannot, while still serving in that public office, vie for the post of County Governor.

2.4.  DISQUALIFICATION FROM ELECTION AS MEMBER OF COUNTY ASSEMBLY

A person is disqualified from being elected a member of a county assembly if the person:

1.       is a State officer or other public officer, other than a member of the county assembly;

2.       has, at any time within the five years immediately before the date of election, held office as a member of the Independent Electoral and Boundaries Commission;

3.       has not been a citizen of Kenya for at least the ten years immediately preceding the date of election;

4.       is of unsound mind;

5.       is an undischarged bankrupt;

6.       is serving a sentence of imprisonment of at least six months; or

7.       has been found, in accordance with any law, to have misused or abused a State office or public office or to have contravened Chapter Six. (See Article 193 (2) of the Constitution)

2.5.  FURTHER LIMITATIONS

In addition to disqualifying factors above, Section 26 (1) of the Election Act provides that a person who DIRECTLY OR INDIRECTLY PARTICIPATES in any manner IN ANY OR PUBLIC FUNDRAISING OR HARAMBEE WITHIN EIGHT MONTHS PRECEDING A GENERAL ELECTION or during an election period, in any other case, shall be disqualified from contesting in the election held during that election year or election period.

2.6.  INITIATION OF COUNTY GOVERNOR ELECTION

Whenever an election for a County Governor is to be held, the Commission shall publish a notice of the holding of the election in the Gazette and in the electronic and print media of national circulation, in the case of a general election, at least sixty days before the date of the general election. (See Section 17 (1) of the Election Act)

The notice of the holding of the election in the Gazette shall be in the prescribed form and shall specify:

(a) the day for the nomination of candidates for the county governor election; and

(b) the day or days on which the poll shall be taken for the county governor election, which shall not be less than twenty-one days after the day specified for nomination. (See Section 17 (2) of the Elections Act)

As such, it is our advice that A Candidate Should Vacate Public Office Before The Date Of Nomination Of Candidates For The County Governor Elections, failure of which a nomination may be challenged on the ground that a candidate is disqualified by virtue of Article 193 (2) (a) of the Constitution.

Further, the Constitution of Kenya does not purport to dictate the time when a candidate shall be deemed to have presented himself for an election. Therefore, the issue as to the time as to when one should vacate public office for purposes of qualification to vie for a political office can only be obtained from interpretation of the law. 

Consequently, the decision as to the time of vacation of public office would be based on the notice issued by the Independent Electoral and Boundaries Commission on the day for the nomination of candidates for the county governor elections.

2.7.  TRANSITON OF MUNICIPAL TO COUNTY GOVERNMENT

The Constitution provides that while an election is being held to constitute a county assembly, the EXECUTIVE COMMITTEE OF THE COUNTY, AS LAST CONSTITUTED REMAINS COMPETENT TO PERFORM ADMINISTRATIVE FUNCTIONS until a new executive committee is constituted after the election. (See Article 198 of the Constitution)

The operations of the county shall therefore expected to proceed without interruption, and immediately upon declaration of the lawful appointment and swearing in of the new County Assembly and County Executive Committee, the new County Government automatically assumes management of county executive and legislative affairs. It should however be noted that a candidate must first resign from a public office before vying for County Governorship, which is a political office.

3.       CONCLUSION

Neither the Constitution nor the Election Act 2011 dictate the period within which a public officer must vacate office before running for a political office, and the office of the County Governorship for that matter. The legal position on the issues is therefore derived from interpretation. In this case, we advice that:

3.1.  A Candidate Should Vacate Public Office Before The Date Of Nomination Of Candidates For The County Governor Elections, failure of which a nomination may be challenged on the ground that a candidate is disqualified by virtue of Article 193 (2) (a) of the Constitution;

3.2.  The Constitution of Kenya does not purport to dictate the time when a candidate shall be deemed to have presented himself for an election. Therefore, the issue as to the time as to when one should vacate public office for purposes of qualification to vie for a political office can only be obtained from interpretation of the law;

3.3.  The decision as to the time of vacation of public office would be based on the notice issued by the Independent Electoral and Boundaries Commission on the day for the nomination of candidates for the county governor elections; and

3.4.  It is therefore safe to continue serving in a public office until a day before the date set for nomination of candidates for the county governor elections.

3.5.  It is also apparent that the current parliamentarians sought to protect 5hemselves by creating suitable Clauses in the Election Act. Section 43 (5) of the Election Act, 2011 stipulates that a Public Officer who intends to contest an election under the act must resign from public office at least seven months before the date of election. THIS SECTION, HOWEVER, “SHALL NOT APPLY TO - (A)  THE PRESIDENT; (B)  THE PRIME MINISTER; (C)  THE DEPUTY PRESIDENT; (D)  A MEMBER OF PARLIAMENT; (E)  A COUNTY GOVERNOR; (F)  A DEPUTY COUNTY GOVERNOR; (G)  A MEMBER OF A COUNTY ASSEMBLY.”

        For further clarification on the issues convassed herein or incidental thereto, please contact the undersigned a stralexgroup@gmail.com.

       Teddy OKELLO

       MD & GROUP CEO

       Strategic Legal Solutions Group