Court of Appeal overturns ruling requiring civil servants to resign
The Court of Appeal has overturned the High Court’s ruling suspending resignation requirement for public officials eyeing elective seats by today.
The decision was rendered by Justices Daniel Musinga (President), Wanjiru Karanja and Agnes Murgor before the deadline as per the circular by Head of Public Service Joseph Kinyua, ruled the circular justifiable.
“Our view therefore is that the provisions of sections 43(5) and (6) are justifiable and reasonable and are not in contravention of any provisions of the Constitution,” the panel said while upholding the provision which has elicited mixed reactions from government officials aspiring for elective seats.
The appeal arose from a decision rendered by the Employment and Labour Relations Court in March 2017 when Justice Njagi Marete declared Section 43(5) of the Elections Act “unconstitutional and without any legal basis or force ab initio.”
The Appeal Court also overturned Justice Marete’s decision that the Elections Act failed the public participation test saying the judge had no jurisdiction to determine the issue of public participation.
“It is clear in our minds beyond any peradventure that the determination of the issue of public participation in relation to the enactment of the Elections Act, 2011 was not within the jurisdiction of the Employment and Labour Relations Court contemplated both in the Constitution and under section 12 of the Employment and Labour Relations Court Act, 2011,” the bench outlined in a detailed ruling.
According to the Elections Act, all public officers seeking elective positions have to vacate office six months to the General Election, in this case February 9, 2022.
The Independent Electoral and Boundaries Commission (IEBC) has since gazetted August 9 as the date for the General Election.
Under Section 43(5) of the Elections Act, “a public officer who intends to contest an election under this Act shall resign from public office at least six months before the date of election.”
Under Section 43(6), the Act however shields elected officials including the President, the Deputy President, Members of Parliament, County Governors, Deputy Governors, Members of County Assemblies from the provision.
IEBC set election timelines in motion after publishing the date for the 2022 General Election on January 21.
The ruling by the Justice Masinga-led bench came amid a flurry of resignations, the latest being by Devolution Cabinet Secretary Charles Keter and Petroleum CS John Munyes vying for Turkana Governor’s Seat after six years in Cabinet.
