Nairobi — Prime Minister Raila Odinga has contradicted a directive issued by President Mwai Kibaki, asking ministers elected to various political offices to resign.
While the president says Cabinet Ministers elected to the new county positions and national assembly must resign before they are sworn in, Odinga says they can only quit once a new government is in place.
The president's office says the Head of State was justified in his directive because it was pegged on legal advice provided to him by Attorney General Githu Muigai and National Assembly Speaker Kenneth Marende.
Interestingly, one of the Cabinet Minister's, Mutula Kilonzo of CORD, told Capital FM News that he cleared from his office on Wednesday last week when their names were gazetted.
Kilonzo said he understood the law and could not wait to be prompted to resign since the constitution was clear that no person is required to hold two offices.
In a legal opinion sent to the Head of Public Service Francis Kimemia on March 13, the AG made it clear that those who now hold elective positions must vacate their Cabinet offices before they are sworn into office.
"An individual member of the Cabinet may lose the right to remain in office in the event that the Cabinet member is subsequently elected and takes oath of another office inconsistent with their tenure in Cabinet," he explained.
Muigai observed that Articles 77 (1) and 152 (3) of the Constitution backed his position, although it was not clear whether or not the incumbent president could fill the vacant Cabinet positions.
"It is another matter whether or not the incumbent president may fill any vacancy arising after Cabinet members have vacated office," he explained.
Although the premier had also made reference to the AG's legal stand while taking his position, he neither responded to the position taken by the AG nor the concerns raised in a paragraph citing Articles 77 (1) and 152 (3).
The PM added that Kimemia's position could only be relevant in respect to Cabinet Secretaries appointed after the General Election.
"It should be noted that the incumbent as caretaker president, amongst other things cannot nominate or appoint or dismiss ministers and the State or public officers," he argued.