Nyong’o’s bid to overturn Kibaki directive flops

By Lucianne Limo

Nairobi, Kenya: Medical Service Minister Peter Anyang Nyong'o suffered a setback after the High Court declined to issue orders nullifying a directive requiring all Ministers and their assistants who were elected on March 4 general elections to resign .

Justice Isaac Lenaola also declined to stop the Clerk of National Assembly from swearing in of the Senators, Governors, and Members of the National Assembly or Women representatives.

Members of National Assembly, Senators, and Women representatives were sworn in on Thursday while Governors took oath of office on Wednesday.

Lenaola noted that the court cannot issue orders stopping the swearing in of duly elected leaders who have been gazzetted.

“I hereby decline to issue orders prayed by the petitioner,” Lenaola ruled.

He asked the petitioner to serve the respondents and appear before him for hearing of the case on April 3.

Nyong’o had asked the court to stop the Clerk of National Assembly from swearing in of the Senators, Governors, and Members of the National Assembly or Women representatives until the next president is sworn in and who, he says, then forms the devolved government that shall establish the elected posts.

Nyong’o, Kisumu County Senator elect also wanted the court to declare that Kimemia’s circular dated March 18 directing them to resign with immediate effect so as to qualify to be sworn in by Clerk of National Assembly as null and void.

Kimemia directed all Ministers and their assistants who were elected to step down save for those who did not compete or qualify for the elective posts to remain in government until the swearing in of the president and appointment of cabinets.

Nyong’o argued in court that there is no constitutional or legal foundation requiring elected ministers and Assistants to resign adding that can only happen after the swearing in of the next president.

“While awaiting the decision of the Supreme Court with regards to the presidential election challenge absence of a cabinet would occasion a crisis as there are several constitutional organs requiring ministerial representation and management of National Security service, “added Nyong’o.

He added that the resignation of Ministers would result in a vacuum in the government and precipitate a constitutional as well as a functional crisis.

The supreme court Presidential election, he averred, extended the mandate of the caretaker government so that the right to remain in office can only be lost in the event  that the elected minister or assistant takes oath of another office and not upon resignation and certainly not by forced resignation which lacks basis in the constitution.

“As such, with the swearing of the next president pending the determination of the petition challenging the presidential election by Supreme court the office of the president shall be operated by the acting president and the directive that elected Ministers resign will result in a situation where the office of acting president exists with no cabinet ministers pending the transition to the devolved government,” Nyong'o said.

He noted that article 77 (1) states that a full time state officer shall not hold any other gainful employment.

“The government is now in transition to a devolved system and as such the Ministers and their Assistants elect are not holding two offices while remaining in their current office, their elected offices will become functional upon their swearing in, “he added.