By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)
The head of the Constitution Implementation Commission, Charles Nyachae cited the reluctance of ministers to surrender office in political parties as one of the issues holding up the implementation of the constitution. So what’s the constitutional position?
Article 77 (2) of the constitution states: “an appointed State officer shall not hold office in a political party.” The clause is pretty straightforward and needs little explanation.
If this Article came into play immediately it would affect several high level politicians Deputy Prime Minister/Finance Minster Uhuru Kenyatta, Water Minister Charity Ngilu, Internal Security Minister/Acting Foreign Minister George Saitoti, Energy Minister Kiraitu Murungi, Medical Services Minster Anyang’ Nyong’o, Justice Minister Mutula Kilonzo.
The Prime Minister and the several ministers have disagreed with the Constitution Implementation Commissions position. The Minister for Justice, and Constitutional Affairs Mutula Kilonzo has argued that the provision barring state appointed officers from holding positions in political parties only kicks in after the 2012 elections a position supported by the other ministers involved. However he has agreed to resign his party position if the other ministers mentioned resign as well. This opposition is likely based on Article 3 (2) of the transitional and consequential clauses of the constitution.
This article deals with portions of old constitution that remain operational until the next general election:
“Sections 30 to 40, 43 to 46 and 48 to 58 of the former Constitution, the provisions of the former Constitution concerning the executive, and the National Accord and Reconciliation Act, 2008 (No.4 of 2008) shall continue to operate until the first general elections held under this Constitution, but the provisions of this Constitution concerning the system of elections, eligibility for election and the electoral process shall apply to that election.”
The point of contention is the part that reads ‘provisions of the former Constitution concerning the executive’. The provisions of the former constitution that govern the executive do not explicitly mention the conflict that may arise from Cabinet Ministers holding executive positions in political parties, nor does it prohibit members of the executive from holding positions in political parties. On a whole the old constitution is silent on the matter of whether ministers can or cannot hold party positions and cabinet simultaneously. The ambiguity means the field is open for virtually any interpretation. There’s the argument that instances of silence the spirit of the constitution should be followed. Fortunately we now have a Supreme Court to untangle the conundrum.