- Justice Anthony Mrima ruled on Tuesday that the law had given the aspirants sufficient time to prepare for elections.
- The principle of ‘res judicata’ precludes courts from dealing with issues that have already been determined.
- Section 43(5) provides that "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".
Civil servants seeking elective office now have less than a month to resign after the High Court struck out a petition challenging the enforcement of a clause in the election law requiring them to do so six months to the date of the General Election.
Justice Anthony Mrima ruled on Tuesday that the law had given the aspirants sufficient time to prepare for elections.
“They [civil servants] cannot have one leg in public service and another at their elective area. The law was designed to aid them to make up their minds on where they want to maximise their energies,” said the judge.
“Six months before the election date is sufficient time for them to prepare themselves to meet their fate at the election box. A longer period would be unreasonable and a shorter period would be more unreasonable."
The judge also noted that the issues raised in the petition were similar to those in a case determined 10 years ago by Justice Isaac Lenaola, now a judge of the Supreme Court.
Justice Lenaola found the provision constitutional.
"The application and the petition are struck out as the issues raised are substantially similar to those determined in 2012 in the case filed by Charles Omanga and Patrick Njuguna. That judgment was never appealed and the orders are deemed final," said Justice Mrima.
The principle of ‘res judicata’ precludes courts from dealing with issues that have already been determined.
Eric Omari Wanyamah, a voter, had sought to have Section 43(5) of the Elections Act declared unconstitutional, arguing it is discriminatory to force civil servants to resign as a pre-requisite qualification to vie for elective seats, while their rivals in the private sector and those holding political positions remain in office.
Section 43(5) provides that "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".
The ruling has removed the legal cover that had cushioned civil servants from resignation ahead of the August 8 General Election.
The petitioner stated that the legal provision is punitive and has a negative impact on youthful aspirants working in the government because they stand to lose their jobs should they join politics.
"The disputed law accords an unfair advantage to some people, breaches the requirement for fairness, equality and proportionality and therefore it is unconstitutional," stated Mr Wanyama.
The petitioner said the legal provision also violates voters’ right to choose leaders.
Taking into account the requirements of the Constitution and the Elections Act as well as related legislation like the Political Parties Act, 2011, the judge said he was convinced that the period is sufficient for a candidate to prepare himself for an election.
In any event, he stated it is only a cut-off point and one may voluntarily choose to resign earlier as is the case in all employment situations.