MCAs have scored big after a three-judge bench declared unconstitutional, Section 14 of the Political Parties Act that barred them party hopping ahead of the forthcoming general elections.
The bench comprising justices Joel Ngugi, Hillary Chemitei and Teresia Matheka maintained that the section of the law which requires sitting MCAs who switch political parties to resign within 180 days of the date of a General Election is unconstitutional as the same is not in line with Articles 194, 101 and 38 of theConstitutionn.
"A declaration is hereby issued that to the extent that section 14 of the Political Parties Act requires a sitting member of the County Assembly to resign from their respective seats as a precondition to switching from one political party to another for purposes of General Elections within 180 days preceding the date of the election, the said section is unconstitutional null and void and of no effect for violating Articles 4(2); 10,19,20 and 259 of the constitution," the judges ordered.
They have further issued orders restraining Speakers of the 47 county assemblies from declaring vacant the seats of MCAs who ditched their sponsoring parties to join others or to become independents or independents who joined parties.
The decision by the judges sitting in Nakuru High Court comes after Kabazi MCA Peter Mbae moved to court to save the sitting MCAs who had switched camps from losing their seats ahead of the August polls.
He had argued that speakers of county assemblies are required to declare seats vacant on the final date set by the Independent Electoral and Boundaries Commission (IEBC) for verification and closure of party membership registers for the General Election scheduled for August 9.
Mbae had also sued Nakuru County Assembly Speaker Joel Kairu following his communication that any member who had expressed interest in contesting under a different party not only needed to resign from their sponsoring parties but also lose their positions.
Kairu, in his communication, reproduced the provisions of Article 194 of theConstitutionn and sections 14(2) and (3) of the political parties. The Act demands persons who wish to contest the next General Elections on parties other than the ones that sponsored them in 2017 to resign from the said parties and their respective seats as MCAs.
"I believe that Section 14 of the Political Party Act is constitutionally deficient to the extent that it does not make reasonable provision that accommodates sitting members of Parliament and county assembly whose sponsorship political parties change manifesto and ideologies for purposes of the next General Election," Mbae informed the court.
He also argued that Section 14 of the Political Parties Act, which seeks to promote democracy and party discipline, is constitutionally deficient as it does not have provisions for unique circumstances during the transition period in the election cycle.
Mbae submitted that it would be impossible to refill such vacancies should such members resign, a move he said would cause people in affected areas to suffer due to a lack of representation in county assemblies for the remainder of the term.
In the case, the petitioner also sued the Registrar of Political Parties, the Independent Electoral and Boundaries Commission, the Attorney-General and the Speakers of the 47 county assemblies.