Governors eyeing the presidency in the 2022 General Election will not have to resign, the High Court has ruled in a Constitution interpretation dispute that has split two judges.
Justice Anthony Mrima, in a judgment contradictory to another delivered by his colleague Weldon Korir last year, has said a sitting President, Member of Parliament (MP) governor or member of county assembly (MCA), who intends to vie for any position that year does not have to vacate the current position.
Justice Korir had said the governors and MCAs harbouring presidential ambitions should resign after nominations so as to attain eligibility to vie for the presidency.
The judge, in the judgment dated October 7, 2020, had said the only holders of political office who can stand in a presidential election without relinquishing office are the President, the Deputy President and MPs.
But justice Mrima has said that a sitting President, MP, governor or MCA does not have to resign so as to qualify to vie for another seat in a General Election.
Justice Mrima said it is only the other State and public officers who should resign within 14 days of the issuance of the notice of a General Election by the Independent Elections and Boundaries Commission (IEBC), or any time before political party nominations are held, whichever comes first.
"A sitting President, MP, governor or MCA who intends to vie for any position in the General Election, upon the expiry of the current electoral cycle, need not resign before the General Election," declared justice Mrima.
MCAs and parliamentary posts
The judge also contradicted his colleague on the interpretation of the Constitution on whether sitting MCAs are qualified to vie for parliamentary seats.
The contradictory rulings have resulted in Gatundu North MP Wanjiku Kibe losing her 2017 victory, although she lodged an appeal, and 11 others retaining their seats.
Ms Kibe's election was overturned on grounds that she was not qualified to vie because she had not resigned as an MCA in Kiambu County.
Her election was nullified by justice Korir, who stated that for an MCA to vie for an MP seat, he or she must resign in order to be cleared by the IEBC.
But Justice Mrima, while dealing with a similar petition seeking nullification of the election of 11 other MPs who were also MCAs prior to their 2017 election, said they were qualified.
He said an MCA who intends to vie for MP in the next General Election does not have to resign either before the party nominations or at all.
The judge said that an interpretation of Article 99(2)(a) and (d) of the Constitution, which calls for MCAs who aspire to vie for other positions in 2022 to resign before party nomination, breeds absurdity.
"That cannot have been the intention of the drafters of the Constitution and the law,"stated justice Mrima.
The MPs who have retained their seats as a result of justice Mrima's ruling include Mary Wamaua (Maragua), Susan Kihika (Nakuru senator), Catherine Waruguru (Laikipia woman rep), Cleophas Malala (Kakamega senator) and Patrick Mariru (Laikipia West MP).
Others are Joyce Korir (Bomet woman rep), Joash Nyamoko (North Mugirango MP), Asha Hussein Mohammed (Mombasa woman rep), Ouda Fred (MP kisumu Central), Mutai Japheth Kiplangat (MP Bureti) and George Sunkunyia Risa (Kajiado West).
He stated that in a scenario where the majority of MCAs aspire to win other seats and are required to resign, it will mean that the county assembly will lack quorum and not be able to discharge its constitutional mandate for the remainder of its term.
"Allowing such an interpretation to prevail will be contrary to the presumption against unworkable or impracticable result, which, in principle, calls for a court to avoid a construction which produces unworkable or impracticable result," said justice Mrima.
"It will also be against the grain on the presumption against anomalous or illogical result. The principle calls for a court to find against a construction that creates an anomaly or otherwise produces an irrational or illogical result."
He observed the trend in the term of office for the President, MPs governors and MCAs is five years and that elections to those offices are held on the second Tuesday of August every fifth year.
"Inevitably, by operation of the law, the President, MPs, governors and MCAs relinquish their political positions on the date of the next General Election," said the judge.
He said this means that they do not have to explicitly resign as the law renders them out of office on the second Tuesday of August every fifth year, of course except for the President during the temporary incumbency under Article 134 of the Constitution.
The judge further explained that except for the President, the other elected leaders do not hold their offices on the day of the general election.
He added that Article 101(4) and (5) of the Constitution) prohibit holding of a by-election for an MP seat three months before a General Election and that this should also apply when a vacancy occurs at the county assembly.
One of the reasons for not conducting a by-election three months to a General Election is that going by the various timelines and processes involved, it is not practical.
The other reason has to do with the cost of conducting a by-election alongside a General Election.
The judge said the reasons, among others, are plausible.
"The foregoing reasons must, hence, find room in respect to a by-election in a county assembly, which is to be held three months to a General Election," he said.