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Government enters watershed period with the February 9 deadline for public officers’ resignation

The mandatory resignation requirement for public officers vying in the 2022 General Election has run into legal headwinds.

Public officers eyeing elective political seats are required by law to resign at least six months to the polls. However, the requirement, anchored under section 43(5) of the Elections Act, 2011, exempts the President, Deputy President, Governors and their deputies, MPs, and MCAs.

In 2017, Justice Njagi Marete declared section 43(5) and (6) of the Elections Act, 2011 unconstitutional and directed IEBC not to bar candidates who do not resign six months to polls. The learned judge termed the requirement “unreasonable and unjustifiable in a democratic society” and added that there was no compelling public interest for mandatory resignation unless and until a public officer had been nominated by their respective political parties.

This week, a secondary school teacher, Mr James Oroko, moved to court seeking to stop IEBC from disqualifying him from contesting if he does not resign from his employment by the February 9 deadline. Mr. Oroko argues that the provision on mandatory resignation is discriminatory and offends Article 27 of the Constitution. If implemented, the teacher avers that he will lose his source of livelihood upon which he depends to support his political ambitions. The case is set for mention on January 31.

Following an application in the High Court in December last year challenging a directive issued by IEBC requiring public officers contesting for elective offices in the August 9 General Election to quit by February 9, Justice Monica Mbaru has this week issued interim orders shielding civil servants from the mandatory requirement pending a hearing on January 24.

Despite the reprieve secured by public officers, the February 9 deadline marks the start of the last days of the current administration. Top public officials, including CSs, Principal Secretaries, parastatal heads, ambassadors, board members, and directors of state agencies eyeing political seats, are expected to resign next month. Likely, such officers who leave office might not get substantive replacements until a new administration comes in.

The exit by top civil servants can disrupt the discharge of critical roles by the incumbent officeholders. It is unlikely that the lame-duck phase of the current administration will alleviate this probability.

With barely 32 days left until the February 9 deadline, civil servants with political ambitions should not rest easy until the courts settle the matter. Given the previous pronouncement by the High Court on the unconstitutionality of the mandatory resignation provision and the public interest implications of its implementation, there is a likelihood of the court upholding its earlier decision.

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