The Court of Appeal yesterday ruled that all civil servants who intend to vie in the August 9 General Election have until close of business today to resign.

Reality started to sink after the Appellate Court set aside a 2017 judgement by the Employment and Labour Court ruling that it was discriminatory to require public servants to resign at least six months to the election.

Justices Daniel Musinga, Wanjiru Karanja and Agnes Murgor said the provision of the Elections Act is innocent and perfectly constitutional.

 “Our view, therefore, is that the provisions of sections 43(5) and (6) are justifiable and reasonable and are not in contravention of any provisions of the Constitution,” the appellant court ruled.

  In 2017, Justice Njagi Marete of the Labour court declared section 43(5) and (6) as unconstitutional and directed the Independent Electoral and Boundaries Commission (IEBC) not to bar public servants who do not resign six months to polls. 

 Marete ruled that IEBC decision was unjustifiable, irrational, most unreasonable and oppressive, further saying the rights of public servants under Article 38 guarantees them equal political rights with other citizenry and this must be honoured.

 “A declaration is hereby issued that under Article 24(1)(2) of the Constitution, the requirement that a public officer who intends to contest an election resigns six months before the date of the election is unreasonable and unjustifiable in a democratic society,” Judge Marete ruled in a case that was filed by Embu county employee, Eric Cheruiyot and 15 others.

 Aggrieved by the decision the County Government of Embu and Governor Martin Wambora lodged an appeal at the Court of Appeal challenging the decision by Justice Marete.

 Section 43(5) of the Elections Act 2011 provides that a public officer who intends to contest an election under this Act shall resign from public office at least six months before the date of election.

However, Section 43(6) provides for category of persons who Section 5 does not apply to who include the President, Prime Minister, Deputy President, MP, Governor and Ward Rep.

 Judges said the Labour court had no jurisdiction to deal with the issue of election rules.

 “It is clear in our minds beyond any peradventure that the determination of the issue of public participation in relation to the enactment of the Elections Act, 2011 was not within the jurisdiction of the Employment and Labour Relations Court, contemplated both in the Constitution and under section 12 of the Employment and Labour Relations Court Act, 2011,” the court ruled

 Judges also ruled that a General Election has very strict timelines that political parties, IEBC, aspirants and other stakeholders must adhere to in order to have free and fair elections. 

 “Resignation of public officers at least six months before the General Election, therefore ensures that IEBC has sufficient time to undertake its processes and that calendar of the General Election is not disturbed or interrupted unnecessarily,” the court ruled.

 Court also ruled that a reading of the Constitution makes it abundantly clear that for a person to be eligible for election into public officer, the individual must not be a State officer unless they are excluded from the category.

 Election period

“The importance of political neutrality and impartiality of public officers during the term of employment cannot be overemphasised. Public officers desirous of running for elective posts to resign in good time,” the judges ruled. 

The last day for resignation of the public servants is February 9 since the electoral agency has already gazetted August 9 as the date for the elections.

 Court of Appeal also agreed with a judgment issued by Justice Isaac Lenaola in 2012, which ruled that Government functions cannot be suspended during an election period and hence the exclusion of persons contemplated under section 43(6).

 Lawyer Dudley Ochiel says the meaning of this decision is that public officers are required to resign by today.

 “The Court of Appeal established and said that provisions of the Elections Act is innocent and perfectly constitutional. You’ll remember Justice Marete had in 2017 held that the requirement to resign was discriminatory,” Ochiel said.