The law did not prohibit a member of County Assembly from being nominated by a political party to vie for a parliamentary seat.
The matter was an appeal against the judgment of the High Court in HC Milimani Constitutional Petition No. 210 of 2020 Formerly Kiambu HC Petition No. 8B of 2019 delivered on October 7, 2020. The 1st respondent had challenged the election of the appellant as the Member of the National Assembly for Gatundu North Constituency.
The appellant’s election had been challenged earlier before the High Court and the Court of Appeal. Her election was initially successfully challenged in the High Court by the 1st respondent in Election Petition No. 1 of 2017 wherein it was held: that the election of the appellant contravened constitutional and statutory provisions governing elections; that the appellant was not validly declared as the Member of Parliament for Gatundu North constituency; and that the declaration issued by the Independent Election and Boundaries Commission (2nd respondent) was invalid, null and void. The judgment of the High Court was overturned by the instant Court in Election Petition Appeal No. 1 of 2017, and the appellant was declared validly elected as the member of the National Assembly for Gatundu North Constituency.
The 1st respondent then filed a constitutional petition seeking a declaration that the appellant was holding office as the member of the National Assembly for Gatundu North Constituency in violation of article 103(1)(g) as read with article 99(2) (d) of the Constitution of Kenya, 2010 (the Constitution) because she was not qualified to contest for election as a member of the National Assembly on the date of her election. That petition was initially dismissed by the High Court but upon appeal to the instant Court, and in a judgment delivered on August 14, 2019, the instant Court allowed the appeal and ordered that the petition be remitted back to the Constitutional and Human Rights Division of the High Court for a new trial. The new trial culminated in the orders the subject of the instant appeal.
The High Court having re-heard the matter allowed the petition holding inter alia that the appellant was a nominated Member of the County Assembly of Kiambu on June 27, 2017 when her nomination to run for the Gatundu North National Assembly seat was gazetted by the 2nd respondent (IEBC). It therefore followed that at the time of her election on August 8, 2017 she was ineligible for election as a Member of Parliament as she was disqualified by article 99(2) (a) & (d) of the Constitution from contesting. Her participation in the election and her subsequent election was therefore unconstitutional, null and void. The High Court thus declared the seat of the Member of the National Assembly for Gatundu North constituency had become vacant by operation of article 103(1)(g) of the Constitution.
Aggrieved, the appellant filed the instant appeal challenging the High Court decision on grounds of; constitutional and statutory interpretation of article 99 of the Constitution and section 43 of the Elections Act; determination of unpleaded issues; and disregard of the doctrine of stare decisis.
- What was the definition of a public officer?
- Whether candidates intending to vie for any political seat established by the Constitution had to be qualified to do so at the time of nomination.
- Whether the law prohibited a member of county assembly from being nominated by a political party to vie for a parliamentary seat on account that a member of county assembly was a state officer.
- Whether nomination of a member of county assembly to contest membership of parliament was an election within the meaning of article 99 of the Constitution.
- Whether there was inconsistency between section 43 of the Elections Act that allowed a member of a county assembly to contest a political seat while still holding that position and article 99 of the Constitution that required public offers to resign from office before vying for public elective posts.
Relevant provisions of the law
Constitution of Kenya, 2010
Article - 99. Qualifications and disqualifications for election as member of Parliament
(2) A person is disqualified from being elected a member of Parliament if the person--
(a) is a State officer or other public officer, other than a member of Parliament;
Article 103 - Vacation of Office of Member Of Parliament
(1) The office of a member of Parliament becomes vacant—
(g) if the member becomes disqualified for election to Parliament under Article 99 (2) (d) to (h).
Elections Act , No. 24 of 2011
Section 43 - Participation in elections by public officers
(5) 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.
(5A) A public officer who intends to contest in a by-election under this Act shall resign from public office within seven days of the declaration of a vacancy.
(6) This section shall not apply to-
(a) the President;
(b) deleted by Act No. 36 of 2016, s. 16;
(c) the Deputy President;
(d) a member of Parliament;
(e) a county governor;
(f) a deputy county governor;
(g) a member of a county assembly.
- The 1st appellant tendered her application for nomination on March 3, 2017 and was gazetted by the Independent Electoral and Boundaries Commission on June 27, 2017 as the duly nominated candidate to contest in the 2017 general elections as the Jubilee party candidate for MP for Gatundu North Constituency. At the time of her nomination and gazettement, the appellant was a member of the Kiambu County Assembly, and she was elected as Member of Parliament for Gatundu North on August 8, 2017 when the general election took place. Article 99 of the Constitution, dealt with qualification and disqualification for election as member of Parliament. The 1st appellant, being a member of a county assembly, was the holder of a state office and therefore a state Officer. That was ascertainable from article 260 of the Constitution which defined a state officer as a person holding a State office and a member of a County Assembly as a State Office.
- The proper meaning of public officer, for purposes of the electoral law, was that embodied in article 260 of the Constitution as read together with section 2 of the Elections Act. The different definitions in other statutory provisions, such as those enumerated earlier on, ought not to take precedence over the constitutional provision. The proper meaning of public officer currently was:
- the person concerned was a State officer; or
- any other person who held public office – an office within the national government, county government, public service;
- a person holding such an office, being sustained in terms of remuneration and benefits from the public exchequer
- Article 99(2)(a) of the Constitution provided that a person was disqualified from being elected as a member of parliament if the person was a state officer other than a member of parliament. Article 99(2)(d) provided that a member of the county assembly fell within those state officers who were disqualified from being elected as a Member of Parliament.
- A reading of article 99(2) of the Constitution showed that the disqualification related to election as a member. They did not relate to nomination. The conditions provided for disqualification had to be present at the time of election as a member of parliament. That was when the issue of whether the candidate was eligible for election came into play. Article 99 of the Constitution dealt with qualifications and disqualifications for elections as Member of Parliament, which was a stage after nomination.
- The High Court misdirected itself in holding that nomination to contest membership of Parliament was an election within the meaning of article 99 of the Constitution. That article did not state that for one to vie for any political seat established by the Constitution, he or she had to be qualified to do so at the time of nomination. The High Court had conflated election, which was the subject of disqualification in article 99 of the Constitution, with nomination for election, which was the subject of section 22(1) of the Elections Act.
- The law did not prohibit a member of county assembly from being nominated to vie for a parliamentary seat by a political party, as nomination to contest as a member of parliament was not an election within the meaning of article 99 of the Constitution. Nomination for election and elections were actually two distinct stages in the electoral process that could not be conflated. Nomination had to first take place and, thereafter, those who were nominated contest the election.
- Section 43(5) of the Elections Act required a public officer who intended to contest an election under the Act to resign from public office at least six (6) months before the date of that election. Section 43(6) of the Elections Act exempted particular state officers from the requirement in section 43(5). Under section 43(6)(g) of the Elections Act, a member of a county assembly was one of the public officers exempted from that section. Unlike other public officers who were expected to resign from their public office at least 6 months before the date of election, the officers identified in section 43(6) of the Elections Act, including a member of a county assembly, did not have to resign before the date of elections, and were not disqualified from contesting for a political position by virtue of those positions.
- There was no inconsistency between section 43 of the Elections Act and article 99 of the Constitution. The section did not allow a member of a county assembly to contest a political seat while still holding that position, but the member of county assembly did not have to resign because they automatically ceased to hold the position by the election date. If anything, the requirement for public servants to resign from the public office was in tandem with the disqualification of public officers provided under article 99(2) of the Constitution and gave public officers a specific timeline within which to resign from their offices should they wish to contest an election. That timeline was pegged on the election date and, for a member of county assembly, the disqualification would not be applicable on the election date, as their term in the county assembly would have ended.
- Article 137 of the Constitution dealt with nomination for election as President, and subsection 2(b) of that article, specifically disqualified a public officer from being nominated. That was distinct from article 99(2)(d) of the Constitution which disqualified a public officer from being elected. Similarly, article 137(3) of the Constitution excluded the president, deputy president and member of parliament from the disqualification in article 137(2)(b), just as article 99(2) (a) of the Constitution excluded a member of Parliament from the disqualification in that article. Article 193 of the Constitution provided for qualification for election as member of county assembly and expressly provided for disqualification of state officers other than a member of county assembly. Although in articles 99 and 193 of the Constitution the disqualification related to election and the disqualification and the exemptions provided in article 137 of the Constitution related to nomination, the articles were all consistent with section 43 of the Elections Act to the extent that a state officer was not qualified to contest at the time of elections.
- The rationale for excluding public officers mentioned in section 43(6) of the Elections Act from the obligation to resign 6 months before the elections was understandable. They all held positions of a political nature by virtue of their elections or nominations. Those included the president, deputy president, member of parliament, governor, member of county assembly, who were elected for a 5-year term, that ordinarily terminated at the next general elections. If those State officers were to resign 6 months before the general elections, their term would be reduced to four and a half years. There would also be a vacuum as the constituencies they represented would be left without a representative for 6 months as no by-elections could be held within that period. That was further reinforced by article 103(1)(f) of the Constitution which provided that the office of a member of parliament became vacant at the end of the term of the relevant House.
- The members of parliament did not need to resign before the elections, as their positions would automatically cease at the end of the 5-year term to facilitate the elections and a new term in the House. Under article 194(1)(f) of the Constitution, a member of a county assembly would serve until the term ended automatically at the end of the term of the assembly when new elections were held and the term of a new assembly started.
- In any litigation, the dispute between the parties was circumscribed by the parties through their pleadings and statement of agreed issues, if any. The issue of eligibility of a member of county assembly, governor or deputy governor, to contest the presidential election, or the president or deputy president to contest a county assembly election without resigning as head of state, was not before the High Court and it was not open to the High Court to make pronouncements in that regard. The only issue before the court was qualification and disqualification of a member of the county assembly for election as a member of parliament. That was what the High Court ought to have restricted itself to.
- At the time of the elections on August 9, 2017, the appellant was not a member of the County Assembly as her term had ended with the term of the county assembly. The disqualification in article 99(2)(a) and (d) of the Constitution that dealt with the disqualification of state officers and members of county assembly for election as members of parliament, would otherwise have been applicable to the appellant if she was still a member of county assembly, was no longer applicable to her.