The complaint by United Democratic Alliance (UDA) accusing CSs Fred Matiangi and Joe Mucheru of engaging in campaigns and the subsequent reply from the electoral commission has rekindled the legal arguments that played out in the Supreme Court in the first 2017 presidential petition.
The question of the role of CSs in election campaigns and the legality of Section 23 of the Leadership and Integrity Act were major grounds ODM leader Raila Odinga raised as he sought to have President Uhuru Kenyatta’s August 8, 2017 win nullified.
In his pleadings, Mr Odinga had cited what he termed “improper conduct” of President Kenyatta and CSs Mucheru, Najib Balala, Mwangi Kiunjuri and Eugene Wamalwa when they gave donations to the Internally Displaced Persons with a view to influence them to vote for Jubilee Party in 2017.
Mr Odinga argued that Cabinet Secretaries, being Public Officers, are prohibited by the Constitution, the Political Parties Act, the Public Officer Ethics Act and the Election Offences Act from participating in political activities.
Apart from demanding the four CSs be prosecuted, the former PM urged the court to declare Section 23 of the Leadership and Integrity Act as unconstitutional for exempting Cabinet secretaries from the requirement of impartiality contrary to Article 232 of the Constitution.
In his reply to UDA’s letter, IEBC boss Wafula Chebukati made reference to the section, and appeared to agree with Mr Odinga’s submission five years ago that it is null on account of being inconsistent with the supreme law.
“We wish to observe that Section 23 of the Leadership and Integrity Act seems to give Cabinet secretaries and county executive members a lifeline to engage in political activity,” Mr Chebukati said in his reply to UDA.
Free and fair General Election
“That statutory provision no doubt falls foul of constitutional underpins under Chapter six. There is need for all state and public officers to uphold political neutrality.”
In its complaint, dated October 29, UDA had demanded that Dr Matiang’i and Mr Mucheru be removed from the multi-agency team planning for a free, fair and transparent General Election since they are openly campaigning for Mr Odinga to succeed President Kenyatta.
The party, which is linked to Deputy President William Ruto, accuses the CSs of violating the constitution by being partisan despite the role the two ministries are supposed to play in the preparation of the election hence should resign.
In its judgment five years ago, four Supreme Court judges agreed that section 23 was ambiguous because it exempts CSs from the prohibition that public officers should not engage in active politics, but sought the justify the ambiguity.
The court noted that CSs and county executive members do serve at the pleasure of either the president or governor, suggesting that they could dabble in politics.
“They are political appointees with the express purpose of delivering the manifesto of their appointing authority or his or her political party,” the four judges argued.
“It is an essential part of a political government in any democracy.”
Active election campaigns
The four judges, whose decisions nullified the outcome of August 8, 2017, were then Chief Justice David Maraga, Justices Isaac Lenaola, Mohamed Ibrahim and Smokin Wanjala.
Justice Njoki Ndungu and retired Jackton Boma Ojwang dissented
The four judges defended the role of CSs in active election campaigns, arguing that a change in the presidency signals the immediate resignation or replacement of such political appointees as CSs.
“This does not apply to the rest of the civil service whose tenure is protected against the vagaries of politics. This is also the reason why civil servants do not and should not participate in active politics, as they should remain apolitical.”
In respect of the allegations against the CSs, the four judges ruled that, those who allege must show that an offence was committed, and that the CSs were acting on instructions of the President.
“They (petitioners) must show the nexus between the person who is alleged to have committed the offence and the returned candidate (the winner) and they must have shown the full particulars of the allegation.”
The court refused to discuss the legality of Section 23 noting that Mr Odinga did not at the very first instance, through his pleadings, indicate his intentions to declare the provision to be unconstitutional.
“The rule of the thumb has always been that parties must be bound by their pleadings and especially in a case such as this where the petitioner is asking the court to address its mind to the possible unconstitutionality of a legal provision,” the court ruled, and directed that the matter be addressed in the right proceedings in the right circumstances.
