By Moses Njagih and Peter Opiyo
Questions are being raised over the illegibility of Cabinet ministers to hold political party positions.
Opinion is divided as to whether political outfits that have so far named such Public officers as officials should be de-registered.
A number of political parties that received their registration certificates from the Registrar of Political Parties — in the rush to beat the April 30 deadline for compliance with Political Parties Act — named Cabinet ministers as officials.
But a section of legal experts have faulted this move, saying it contravenes the Constitution that bars State officers from holding positions in political parties. They argue that Article 77(2) of the Constitution is not suspended and thus a political party that has enlisted ministers as officials should be de-registered.
But the Registrar of Political Parties, Ms Lucy Ndung’u, supports the enlisting of Cabinet Ministers as party officials, arguing that as elected MPs, the law allows them to hold the positions.
Ms Ndung’u cites Section 12(2) of the Political Parties Act that allows the President, his deputy, MPs, Governors and their deputies and members of the County Assemblies to hold party positions after the next elections.
"As it is, the ministers are shielded by this section of the Act and it is thus appropriate for them to hold these positions," argues Ndung’u.
But the Centre for Multi-party Democracy (CMD) Chairman Justin Muturi has dismissed Ndung’u’s reasoning arguing that under the current dispensation, ministers are State officers who the Constitution explicitly bars from holding party positions.
Suspended clauses
Muturi argues that Article 77(2) is not among the suspended clauses, and thus its stipulations should be strictly followed and ministers and parastatal officers cease being party officials.
"Only Chapter Seven and Eight and Articles 129 to 155 of the Constitution are suspended, and these do not include that Article. It is captured under Chapter Six and therefore means this law must be enforced strictly," says Muturi.
The former Siakago MP says that irrespective of the stipulations of the Political Parties Act, the Constitution must be viewed as superior and thus be upheld at the expense of any other law.
"It is immaterial what the Act says. The argument people are using is that transitional clauses allow ministers to continue holding these positions, but the truth of the matter is that they are State officers and barred by the Constitution from holding these positions," he says.
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