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CAN PUBLIC OFFICERS OFFER THEMSELVES FOR ELECTIONS?

Every citizen has political rights guaranteed under Article 38 of the Constitution of Kenya 2010 (paraphrased) which provides that;

Every citizen is free to make political choice which include the right

  1. To form, or participate in forming a political party
  2. To participate in the activities of or recruit members for a political party or
  3. To campaign for a political party or cause

Every adult citizen has a right without unreasonable restrictions to be a candidate for and elective public office or office within a political party of which the citizen is a member and if elected to hold office.

It is the right of any qualified person, including a Public Officer to vie for an elective post.

The political rights of a public officer are limited by Article 24(1) and (3) of the Constitution that allows for the Law to limit rights and freedoms if reasonable and justified. Section 43 of the Elections Act and Section 12(1) of the Political Parties Act limit this right by providing that;

“(1) A public officer shall not –

a. Be eligible to be a founding member of a political party;

b. Be eligible to hold office in a political party;

c. Engage in political activity that may compromise or be seen to compromise the political neutrality of that person’s office; or

d. Publicly indicate support for or opposition to any political party or candidate in an election”

The right of Public Officers is limited because the Public Officer is required to be impartial, efficient in exercise of this duties (Article 232 of the Constitution of Kenya 2010) and being a member of a political part or vying for an elective post may interfere with this. (See the Public Service Values and Principles Act).

Who is a Public Officer?

Under Article 260 of the Constitution of Kenya 2010( paraphrased), a Public Office is An office in the National Government , a County Government or the public service, if the remuneration ( salary) and benefits of the office are payable directly from the Consolidate Fund or directly out of money provided by Parliament.

A Public Officer means,

  1. Any State Officer; or
  2. Any person, other than a state officer who holds a public office

A State Officer refers to any person holding a of the State Office as below,

  1. President
  2. Deputy President
  3. Cabinet Secretary
  4. Member of Parliament
  5. Judges and Magistrates
  6. Member of a Commission
  7. Holder of an Independent Office e. DPP an Auditor General etc
  8. Member of a County Assembly,
  9. Governor or Deputy Governor of a Count or
  10. Member of the Executive Committee of a County Government
  11. Attorney General ( including County Attorney General)
  1. Director of Public Prosecutions
  2. Secretary to the Cabinet
  3. Principal Secretary
  4. Chief of the Kenya Defence Forces
  1. Commander of a Service of the Kenya Defence Forces

Find a comprehensive list of who is public officer from the Public Service Values and Principles Act.

Generally, a public officer includes all civil servants, parliamentarians, teachers, doctors and any one paid from the public coffers.

The Election Act at Section 43 limits the political rights of the public officer and prohibits a public officer who is in office to;

(a) engage in the activities of any political party or candidate or act as an agent of a political party or a candidate in an election;

(b) publicly indicate support for or opposition against any party, side or candidate participating in an election;

(c) engage in political campaigns or other political activity; or

(d) use public resources to initiate new development projects in any constituency or county for the purpose of supporting a candidate or political party in that constituency or county.

Section 23 of the Leadership and Integrity Act requires public officers to be politically neutral.

(Section 43 of Election Act)

A public officer who contravenes Section 43 of Election Act above commits an offence and is liable on conviction, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years, or to both.

A person who knowingly aids in contravention of the above commits an offence and is liable, on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years, or to both such fine and imprisonment.

A candidate who knowingly aids in contravention of the above shall not be eligible to contest in the election and shall stand disqualified for an elective post.

(Section 43(5), Election Act 2011).

A public officer who intends to contest an election or participate in a politics is required to resign from public office at least six months before the date of election.

Where the Public officer does not resign before 9th February 2017, he cannot contest for the 2017 General Elections. Any public officer who convenes this is liable of an offence as above and the results for his candidature or nomination, if any, will be void.

NO.

The following public officers are not required to resign when vying for elective posts or engaging in politics and will hand over to the newly elected person or take office afresh after the election results are announced and certificate issued .

(a) the President;

(b) the Prime Minister;

(c) the Deputy President;

(d) a member of Parliament;

(e) a County Governor;

(f) a Deputy County Governor;

(g) a member of a County Assembly.

The above officers are required to remain in office as the National and County Governments cannot be left with a leadership vacuum. Moreover the elective posts are for five years which terminate during the next General Election and not before.

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