Read the law before taking party hoppers to court

By Koki Muli

It is not easy to determine whether hopping from one political party to another is after all an offence that should be prosecuted despite the provisions of the Political Parties Act (PPA) to criminalise the act. Article 38 of the Constitution provides that every citizen is free to make political choices, which include the right to form, or participate in forming, a political party; to participate in the activities of, or recruit members for, a political party; or to campaign for a political party or cause. Article 81 provides the electoral system shall comply with the freedom of citizens to exercise their political rights under Article 38.

These two articles read together and in the spirit of the Constitution (the supreme law) provide for unfettered political rights, while the PPA, which is subject to and cannot contradict the Constitution criminalises party hopping. Also, the Political Parties Tribunal established by the PPA should resolve political party disputes.

Article 14 of PPA provides that a person shall not be a member of more than one political party at the same time; that a member of a political party who intends to resign from it shall give a written notice to the political party; the Clerk of the relevant House of Parliament, (for Members of Parliament – MP); or to the clerk of a county assembly, (for members of county assembly).

In this case, the resignation shall take effect upon receipt of such notice and the relevant recipient of such notice shall notify the Registrar of Political Party of such resignation. The same article provides that a person is deemed to have resigned from a party if that person – forms another political party; joins in the formation of another political party; joins another political party; in any way/manner, publicly advocates for the formation of another political party; or promotes the ideology, interests or policies of another political party.

However, a member of a political coalition can publicly advocate for the formation of a coalition or merger; or promote the ideology, interests or policies of another political party within the coalition/merger of the parties to the coalition/merger and will not be deemed to have resigned from the previous political party and cannot lose their elective seat. In addition, article 11(7) of the PPA provides that if a political party merges or forms a coalition and a member/official doesn’t want to stay, they are free to join any other party or remain independent without any consequence.

Therefore, members of the political parties within the Grand Coalition can hop from party to party within the coalition. However, if a member of a political party in the coalition forms or joins another party; then according to the PPA, that member will be deemed to have resigned. The PPA also provides that a member of a political party may only be expelled from that party if the member has infringed the constitution of the political party and after being afforded a fair opportunity to be heard in accordance with the internal party disputes resolution mechanisms as prescribed in the constitution of the political party.

Also, a person who suppresses or attempts to suppress any lawful political activity of another person commits an offence and shall, on conviction, be liable to a fine not exceeding Sh1 million or to imprisonment for a term not exceeding two years or to both.

Therefore, if a member is deemed to have resigned from a political party and does not write a letter of resignation, it is up to the aggrieved party to initiate the mechanisms to kick that member out and after going through the process as prescribed by the law, to write to the Registrar of political parties to initiate the process of a by-election where relevant. Therefore, political parties should not clog the courts with applications unnecessarily.

The writer is an elections and constitutional law expert and lecturer, South Eastern University College