Ex-governors face possible 5-year ban from political office after term ends

Former governors seeking to contest county elective seats immediately after the end of their terms are staring at being barred from vying for any political office for at least five years.

The development comes after a Senate committee gave the green light to a proposed legislation seeking to bar the ex-county chiefs from contesting either as senator or MCA immediately after serving as governor.

The Senate Justice and Legal Affairs committee chaired by Bomet Senator, Hillary Sigei, recommended the Senate passage of the Bill – The Constitution of Kenya (amendment) Bill, 2023 – without amendments.

The move by the committee now leaves the fate of former governors with such ambitions hanging in the balance ahead of debate on the Bill, even as it continues to elicit mixed reactions from different quarters.

The committee argued that the right to be a candidate for public office is not absolute, and there are already certain limitations to the exercise of the right already provided for in the Constitution.

“Articles 99(2) and 193(2) of the Constitution (as replicated in sections 24(2) and 25(2) of the Elections Act) provide for the grounds on which a person stands disqualified from being elected as a member of Parliament and of the county assembly respectively,” reads in part the committee’s report.

The Bill by nominated Senator Raphael Chimera seeks to amend Article 180 of the Constitution of Kenya by inserting a new clause.

The new clause provides that a person, who has served as a county governor, shall not be eligible to be elected as an MP or MCA within the first five years immediately after the end of the term of service.

Mr Chimera argues that the consequence of the draft bill is to allow for any ongoing accountability processes, such as auditing of county government accounts, to be concluded.

The outcome of such processes, he said, would have a bearing on whether such a person would be suitable to hold any other elective office.

The lawmaker points out that county governors, in the course of their duties, have to account to the county assemblies and the Senate for any financial and administrative decisions made.

“The overarching object of the bill would therefore be an enhancement of the rule of law and accountability in the exercise of public power,” said Mr Chimera.

“The effect of this would be that oversight bodies would have adequate time to inquire into any matters arising from the tenure of a previous holder of the office of county governor without interference by the former county governor, which is highly likely particularly if the person is elected as a member of county assembly or to the Senate,” he added.

Currently, former Mandera Governor Ali Roba and his Uasin Gishu counterpart Jackson Mandago are serving as senators after being elected immediately after serving two terms as governors.

Appearing before the committee, the Ethics and Anti-Corruption Commission (EACC) supported the Bill, saying barring a former governor from vying either as senator or MCA provides reasonable restriction to avoid situations of conflict of interests, and abuse of position or undue influence.

“The proposed length of a five-year election cycle/one term is reasonable and proportionate to the threat posed by the immediate former governors to the oversight role of the County Assembly,” said EACC in its support of the amendment.

However, the Office of the Director of Public Prosecution (ODPP) opposed the Bill in its entirety, saying the proposed amendments affect a wider array of Constitutional provisions.

ODPP argued that the Senate cannot by way of Parliamentary initiative seek to limit the right of former governors from contesting for elective seats as this will violate Article 255 of the Constitution.

According to ODPP, singling out ex-governors is discriminatory and is not in conformity with Article 38 of the Constitution, which states that every citizen is free to make political choices.

“In effect, the proposed amendment can only be undertaken through a popular initiative as provided for under Article 257 of the Constitution,” said the ODPP.

The Council of Governors also held that the proposed amendments might require a referendum under Article 255 of the Constitution, saying the Bill seeks to amend certain fundamental provisions of the Constitution since it offends Article 38 of the Constitution on political rights.

The County chiefs argued that the contents of the Bill are in violation of Article 50(2)(a) on presumption of innocence and fair hearing on the basis that the provisions are speculative.

“The proposals in the bill presume that all current and former Governors as presumably guilty of misconduct which they will be held accountable before the exercise of their constitutional right to contest for elective office,” Governors argued in their objection to the Bill.

For their part, the Independent Electoral and Boundaries Commission (IEBC), while opposing the Bill, argued that instead of limiting the rights espoused under Article 38(3) of the Constitution, consideration should be made to expand the existing legislative frameworks.

According to the IEBC, considerations should be made in the Elections Act, Election Offences Act, Leadership and Integrity Act and the Ethics and Anti-Corruption Act to bar convicted officeholders in future elections as anticipated under Chapter Six read together with Article 99(2)(h) of the Constitution.

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