Why Esther Mwihaki and Joshua Mwangi are not eligible to vie in Gaturi by elections

By Ndungu Gachane

Joshua Mwangi and Esther Mwihaki

The decision by the ruling Jubilee party to conduct party primaries on Friday September 9 2020 was a tactical move aimed at locking the losers in a by-election slated on December 15 this year.

The law, under article 85 of the Constitution, Section 14(3) of the Political Parties Act and Section 33 of the Elections Act gives guidelines to the electoral candidates to follow when they want to resign from their political parties to vie as Independent Candidates or using other political outfits.

Article 85 of the Constitution provides that any person is eligible to stand as an independent candidate for election if the person is not a member of a registered political party and has not been a member for at least three months immediately before the date of the election.

The said legal section was intended to prevent electoral candidates from party-hopping without informing the requisite legal authorities of the changes in their party allegiances.

Section 14(3) to be specific goes ahead to give explanations and steps on “resignation from political parties” and it reads verbatim as follows;

“14. (1) A member of a political party who intends to resign from the political party shall give a written notice prior to his resignation to –

(a) The political party

(b)   The clerk of the relevant House of Parliament, if the member is a member of Parliament

(c)   The clerk of a county assembly, if the member is a member of a county assembly

(2) The resignation of the member of the political party shall take effect upon receipt of such notice by the political party or clerk of the relevant House or County Assembly

(3)   The political party to which the person is a member, the member or the clerk of the relevant House of Parliament or of a county assembly of which the person is a member shall notify the Registrar of such resignation within three days of the resignation

The above provision has also been operationalized by Section 33 of the Elections Act which provides thus;

“33. A person qualifies to be nominated as an  independent candidate for presidential, parliamentary and county elections for the purposes of Articles 97, 98, 137, 177 and 180 of the Constitution if that person;

(a)   has not been a member of any political party  for at least three months preceding the date  of the election

The Gaturi by election will be held on December 15 and if you subtract the date when the party nominations were conducted you will get that it will be only 2 months from the date of party nominations.

Therefore both Ms Mwihaki and Mr Githinji will not be eligible to vie as Independent candidates or using other political parties because they will have offended the Political Parties Act and the elections act.

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