The Elections Act 2011 as applied today bars sitting Governors and Members of County Assembly MCAs from vying for any other elective seat unless they resign six months before a general election.
This legal mischief is not only discriminatory, it is unconstitutional and undemocratic.
While elected Members of Parliament MPs and Senators are allowed to seek other seats such as Governor or President without resigning, Governors and MCAs are punished for aspiring to higher office.
Both categories are elected. Both draw salaries from the public purse. Yet only one group is treated like a threat to free and fair elections. This is blatant legal hypocrisy.
It gets worse. The Elections Act classifies Governors and MCAs as public officers and forces them out of office for merely exercising a constitutional right. Appointed state officers including Principal Secretaries, Commissioners, and Directors are subjected to the same harsh rule. This approach kills ambition. It builds a political class at the expense of public talent.
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Let us be clear. It is fair and reasonable that all public or state officers should be allowed to contest elective office without unnecessary resignation. We cannot build an inclusive competitive democracy if we treat political ambition like a crime.
The only public officers who should face restrictions such as mandatory leave are those who have Authority to Incur Expenditure AIE holders.
These are the individuals who control state budgets and procurement processes and they pose a real risk of undue influence over the electoral process. But even then, approved leave not forced resignation should suffice to level the playing field.
We must also confront the political reality.
Parliament will never fix this. Why would MPs amend a law that conveniently exempts them but punishes their political competition? Expecting Parliament to reform this provision is like expecting turkeys to vote for Christmas.
That is why the courts must step in.
The Judiciary must strike down this unconstitutional discrimination. Every Kenyan appointed or elected should have the right to run for public office without fear of losing their job. Either all must resign or none should. That is the only fair rule.
The current law violates Article 38 of the Constitution which guarantees the right of every citizen to participate in the political life of the country. That includes the right to contest elections freely and fairly without arbitrary legal obstacles.
If we truly want to attract the best minds, the most experienced civil servants, and the boldest reformers into political leadership, then we must stop punishing them for aspiring. We must stop creating artificial ceilings for Governors and MCAs while MPs enjoy unlimited political mobility.
It is time to end this selective injustice. It is time to allow Governors, MCAs, and all public servants to run for office without resigning, unless they control public funds. Then let them step aside briefly and return after the contest.
The Constitution demands fairness. The law must catch up.
By Billy Mijungu
