Photos/FILE From left: Deputy Prime Minister Uhuru Kenyatta, Cabinet ministers Charity Ngilu and George Saitoti (PNU chairman) and MP Martha Karua are among key politicians who will be required to quit their positions.
Key politicians, among them eight Cabinet ministers, will soon lose their hold on political parties because they are now required to resign top party positions.
The Commission for the Implementation of the Constitution has advised the Registrar of Political Parties to ensure that ministers, assistant ministers and MPs do not hold positions in parties.
The commission argues that to do so is to break the new Constitution.
However, it emerged that the ministers occupying top party positions met early this year and agreed that the provisions which require them to relinquish their party positions will come into force after 2012.
In a letter dated May 19, 2011 to the Registrar of Political Parties, Ms Lucy Ndungu, the CIC boss Charles Nyachae states that ministers and MPs should not hold party positions since they were State officers.
“We opine that any appointed State officers who are holding offices in political parties are acting in contravention of the Constitution and penalties provided in the Constitution are applicable to them,” he said.
He argued in the letters obtained by the Nation that Article 77(2) prohibits State officers from holding party positions.
It states: “Any appointed State officer shall not hold office in a political party.”
The article, the CIC noted, came into force immediately the new Constitution was promulgated on August 27, 2010.
This means that Deputy Prime Minister Uhuru Kenyatta (Kanu chairman), Cabinet ministers George Saitoti (PNU chairman), Samuel Poghisio (ODM Kenya chairman), Charity Ngilu (Narc chairperson), Kiraitu Murungi (PNU secretary-general), Anyang’ Nyong’o (ODM secretary-general) and Mutula Kilonzo (ODM-K secretary-general) will be required to quit their positions.
Also affected are MPs Martha Karua (Narc Kenya chairperson), Henry Kosgey (ODM chairman), Moses Wetang’ula (Ford Kenya chairman), Asman Kamama (Narc-K vice-chairman), Danson Mungatana (Narc-K secretary-general), Eseli Simiyu (Ford-K secretary general), and Aden Duale (ODM vice-chairman).
“The significance of Article 77(2) is that persons appointed to hold state offices are prohibited from holding official positions in political parties,” the CIC boss said.
The letter spares President Kibaki (PNU party leader), Prime Minister Raila Odinga (ODM party leader), Vice-President Kalonzo Musyoka (ODM-K party leader) and Housing Minister Soita Shitanda (New Ford- party leader) since the positions they hold are not recognised in party hierarchy.
However, Mr Kilonzo, the Justice and Constitutional Affairs, countered that current Cabinet ministers were serving under the provisions of the old Constitution.
He argued that the chapters on the Executive in the old constitution were still in force — as outlined in section 3 (2) of the Sixth Schedule — and it was wrong to refer to them as “ State officers” in the sense of the new Constitution.
“The present Cabinet is serving under the Executive chapters of the old Constitution until 2012. There are also provisions of the National Accord as provided for in the Sixth Schedule,” he said.
Mr Kilonzo said ministers who are lawyers met after the new Constitution was promulgated to discuss the matter and it was unanimously agreed that the provisions that Mr Nyachae was referring to come into force after 2012.
“I called a meeting of Cabinet ministers who are lawyers to deliberate over the matter and the common position is that the provisions come into force after 2012. I can speak for them,” he said.
The Justice Minister, however, said he was ready to resign as ODM-K secretary-general if his colleagues also resigned. “ I am ready to quit if Saitoti, Kiraitu and Nyong’o also resign.”
The tough position by CIC was taken in response to a request from Ms Ndung’u, who wanted the Nyachae team to interpret the provisions of the new Constitution on ministers holding party positions.
A letter dated May 3, 2011 said: “Attached herein is a copy of a letter from the party seeking guidance on the interpretation of Article 77 (2) of the Constitution for your comments.”
ODM had written to Ms Ndungu on April 20, 2011, seeking guidance on Article 77, 260 and the Sixth Schedule regarding Cabinet ministers, MPs and other state officials who want to hold party positions.
“The party is seeking a clarification from your office with regard to the position of ministers and assistant ministers serving in the coalition government, members of Parliament and public officers seeking to hold office in the party organs,” the letter read in part.
Prof Nyong’o said ODM was planning to hold elections as from next week to ensure that the party organs are in line with the new Constitution. The polls were called off on Tuesday. (READ: ODM puts off grassroots polls)
Mr Nyachae advised that ministers and MPs should not vie for party posts in the pending elections.
He said “no appointed state officer should offer themselves for election unless they intend to forfeit the State office,” he said.
The CIC lists the President, Deputy President, cabinet secretary, MPs, secretary to the Cabinet, Attorney General, judges and magistrates, members of commissions, holder of independent offices, governors and their deputies and county assembly members as state officers.
Mr Nyachae said whereas politicians could use different interpretations of the word “appoint” to continue holding party positions, the facts are well explained in the Constitution.
Mr Nyachae warned that those who contravened the Constitution by holding party positions risked being dismissed or removed from office.
“Further, a person who has been so dismissed or otherwise removed from office under these provisions is disqualified from holding any other State office,” he said.
“It is imperative to note that state officers come into office through different procedures and terms of service are prescribed by the Constitution or by legislation including nomination, election, appointment to service or office on permanent or temporary or paid or unpaid terms among others,” he said.
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