Hundreds of Members of Parliament and Senators are holding their seats illegally after defecting from political parties that sponsored them to Parliament.

Registrar of Political Parties Ann Nderitu told a parliamentary committee that the law is clear that one is deemed to have lost his or her seat the moment they decamp from the sponsoring party.

According to the Registrar, the onus rests on clerks of the National Assembly, in the case of MPs and Senate in the case of senators, to declare the seats vacant after being duly notified by the lawmakers switching political parties.

“What happens will be determined by momentous actions of the Speakers of the relevant Houses,” she said, adding that her office’s mandate was to facilitate the membership movement.”

“They will have to inform the Clerk of either House of Parliament and my office before they are declared to have lost the seats,” Nderitu said when she appeared before the Justice and legal Affairs Committee of the National Assembly, chaired by Kangema MP Muturi Kigano yesterday.

She added; “It is a delicate matter. One will have to inform the clerk or my office before the seat is declared vacant, but as it is now the members will continue serving.”

But National Assembly Clerk Michael Sialai differed with the Registrar, saying as the custodian of the register, it was her duty to inform his office of the movement of members.

“The RPP is the custodian of the parties register and so without her writing to us, the Speaker cannot declare the seats vacant,” he told People Daily.

Former parties

Asked whether laws passed by the MPs deemed to have changed parties would be affected, Sialai maintained that nothing would change in terms of legislation during the period the members are said to have shifted parties.

According to Section 124 (b) of the Standing Order, the proceedings of either House are not invalid just because of-(a) a vacancy in its membership; or (b) the presence or participation of any person not entitled to be present at, or to participate in, the proceedings of the House. 

“It is clear, just like in a situation where a member loses a seat through a petition, bills passed during the period are not declared unconstitutional,” Sialai said. 

The Registrar, however, said by-elections were not likely to take place since they cannot be held three months to the General Election.

The law states that once a member has left a party that sponsored them to Parliament or county assembly, a by-election should be held.

Article 101 (5) of the Constitution stipulates that a by-election shall not be held within three months immediately before a General Election.

Section 37 (3) of the Elections Act provides that a vacancy in any of the nominative seats shall not be filled three months immediately before a General Election. It,therefore, means that with the General Election set for August 9, counting three months backward, it therefore means that no by-election shall be held beyond May 9.

Proclamation by the Registrar comes at a time when hundreds of MPs have left their former parties to join new ones ahead of the April 22 nominations. 

More than 130 MPs allied to Deputy President William Ruto are said to have left Jubilee party to join the United Democratic Alliance (UDA).

Mathira MP Rigathi Gachagua is the latest member to defect to UDA after he formally registered to defend his seat in the new party.

“I have officially left Jubilee. I am now a registered UDA member and will defend my seat on this ticket,” wrote Gachagua as he displayed a copy of a registered receipt after he paid the requisite Sh250,000 fee.

There is another group of members who left Amani National Congress to join the newly formed Democratic Action Party and others to the ODM. Also affected is Speaker Justin Muturi, who despite being a member of the Jubilee party, which nominated him to the position, has since joined the Democratic Party.

Nderitu had been invited by the committee to update members on the country’s preparedness for the August 9 General Election. She at the same time gave hope to aspirants who lose in the forthcoming party primaries.

Election guidelines

She told the committee that those who claim to have been rigged during primaries and may want to vie as independent candidates have a window to do so.

“Those dissatisfied by the outcome of primaries will have a 10-day window to change parties to vie as independents,” Nderitu said in response to a question by Kisumu Town West MP Olago Aluoch.

“The election guidelines by IEBC provides that parties conduct their primaries within 10 days – between April 22 and May 2,” Nderitu said.

Article 85 of the Constitution provides that an individual wishing to vie as an independent candidate must not have been associated with any political party at least three months to a General Election.

She told the committee that her office will revert to the old system of operations should the court declare the Political Parties Act unconstitutional. Aluoch had asked her what measures she had put in place in a likely situation where the court declared the law illegal.

New law requires registered political parties cleared to contest in the August polls to submit their membership lists by March 26.

The same law provides that once a notice for a General Election has been issued, no by-election shall be held within that period.

Before amendment to the Elections Act, one was required to write to the registrar and then notify the parties they are resigning from, but now the movement has been made simpler.