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Kenya: Appeal Court Upholds Requirement for Public Officials With Political Ambitions to Quit

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Nairobi — The Court of Appeal has upheld provisions of the Elections Act requiring public officials holding appointive offices to resign six months to an election before seeking elective office.

The decision was rendered by Justices Daniel Musinga (President), Wanjiru Karanja and Agnes Murgor on Tuesday a day before the deadline set in the Elections Act.

“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.

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.”