Teachers and other employees of the Teachers Service Commission (TSC) seeking elective posts in the 2022 general elections have been ordered to resign.
In a circular dated 4th February 2022 directed to teachers and the secretariat staff, the TSC CEO Nancy Macharia says anyone who wants to contest any political seat in the coming elections should resign on or before 8th February 2022.
Macharia says such employees should hand over all institutional property in their possession and clear with their respective supervisors before they exit employment.
Union officials go for elective posts
At the Kenya National Union of Teachers (KNUT), none of the national officials is contesting political seats. However, at least 13 executive secretaries have expressed interest.
In Western, Bungoma East’s Aggrey Namisi, Patrick Chungani (Kakamega East) and Archedeous Liyayi (Kakamega South) will seek parliamentary seats.
In Nyanza, Gucha executive secretary Lucy Machuki and Siaya Woman Representative Mildred Ogogo will battle for the Kisii and Siaya Woman Representative positions, respectively. Homa Bay Executive-secretary Cornel Ojuok and Eliud Ombori (Rachuonyo) will run for MCA seats.
On the other hand, gender secretary Catherine Wambilyanga will defend her Bungoma Women Representative seat.
Nyambene executive-secretary Julius Taitumu, Kasimba Ngui (Yatta), and Macharia Mugwe (Nairobi) will contest for MP seats in Eastern.
At the Kenya Union of Post Primary Education Teachers (KUPPET), nearly all national officials have expressed interest in politics.
Led by KUPPET secretary-general Akello Misori, who is seeking to succeed Governor Cyprian Awiti in Homa Bay County, executive secretaries in Kisumu, Bungoma, Makueni, and Nandi will be running for MP seats.
Chairman Omboko Milemba will defend his Emuhaya MP seat while treasurer Wicks Mwethi Njenga, vice-chairman Julius Korir, Sammy Chelanga and Henry Obwocha are eying Kabete, Soy, Baringo North and Kitutu Masaba parliamentary seats respectively.
The script is the same for Ndung’u J., the executive-secretary Nyandarua North, and John Njata (Muranga South), who will contest for MCA positions in Central.
Below is a similar circular that was issued on December 2020 that restrict teachers from engaging in political party activities.
RESTRICTION OF EMPLOYEES OF THE TEACHERS SERVICE COMMISSION FROM PARTICIPATING AND/OR ENGAGING IN ACTIVITIES AND AFFAIRS OF POLITICAL PARTIES
The above captioned matter refers.
The Commission is in receipt of a Circular, Ref: EACC.7/10/4 VOL.VII (61) dated 1/10/2020, amplifying the above provisions of the law.
Pursuant to the provisions of Article 77(2) of the Constitution of Kenya as read together with section 23 of the Leadership and Integrity Act, 2012; section 12 of the Political Parties Act, 2011; and regulation 187 of the Code of Regulation for Teachers, Clause 166 of the Human Resource Policies & Procedure Manual for Secretariat Staff, public officers are prohibited from holding office and/or actively engaging in political activities.
Accordingly, this is to remind all employees of the Commission of the explicit positions of the law prohibiting them from taking part in any active political engagements while still in service of the Commission; and further requiring them to refrain from:
(1) holding office in a political party;
(2) engaging in a political activity that may compromise or be seen to compromise the political neutrality of the office they hold;
(3) publicly indicating support for or opposition to any political party or candidate in an election; and
(4) engaging in activities of any political party or candidate, or act as an agent of a political party or candidate in an election.
In congruence with the spirit of national values and good governance under the Constitution which includes impartiality and political neutrality, it is vital for all employees of the Commission to adhere to strict observance of the law in respect hereof by abstaining from taking part in political engagements.
In this regard, all employees of the Commission are directed to shun partisan political activities while in active public service.
The Commission further brings to your attention that any of its employees who currently holds and/or engages in political activities is in violation of the law and is liable to disciplinary action.
This is therefore to advice such an employee to immediately resign from such office.
Further, any breach of the directions of this Circular shall result in disciplinary action.
All County Directors are hereby directed to bring the contents of this Circular to the attention of ALL the officers and teachers serving under them.
Likewise, all Institutional Heads are equally directed to bring the contents of this Circular to ALL teachers and to post the same on school/staffroom notice boards for ease of reference by teachers.
DR. NANCY NJERI MACHARIA, CBS
SECRETARY/CHIEF EXECUTIVE
Other big names in education joining politics
Education Chief Administrative Secretary Hassan Noor Hassan has declared interest in the Mandera County governorship seat.
Announcing his intent to vie, Hassan said he has been tried and tested in several senior government positions.
“There is no doubt that I have led in very significant positions in this country. Currently, I am the deputy minister for education and there is no doubt that I am the true candidate for governorship,” said Hassan.
Hassan Noor’s bid to succeed Governor Ali Roba heightens the contest which already boasts Mandera Speaker Mohamed Khalif, businessman Adan Haji Issack and banker Ali Kiti.
Governor Ali Roba is serving the final term.
The CAS who will run for governorship on the Ukur Yattani-led Upya Movement is among high ranking education officials eying elective seats, including Education CAS Mumina Gallo Bonaya who is seeking the Marsabit Woman Representative seat.
Former EACC CEO and Universities Fund chairman Halakhe Waqo is expected to contest for the Isiolo governorship seat while Kenya National Qualifications Authority (KNQA) chairman, Dr Kilemi Mwiria, will be vying for Tigania West parliamentary seat.
Central Regional Director of Education John Lekakeny Ololtuaa has meanwhile resigned from Public Service after 28 years to vie for Kilgoris Parliamentary seat.
Court decision on public officers joining politics
This week the Court of Appeal overturned a decision that allowed public officers to stay in office until after party nominations.
The judgment by appellate judges Daniel Musinga, Wanjiru Karanja and Agnes Murgor ordered all civil servants eyeing political offices to resign six months before the elections.
Consequently, all civil servants seeking elective positions in upcoming elections must quit office 9th February 2021 or be locked out of the August 9 General Election.
“Provisions which require civil servants and other State officers to resign six months before the election are justifiable and reasonable. We find that the Labour court acted beyond its limit by declaring the provision as unconstitutional and we set aside the decision,” ruled the judges.
They made the decision from an appeal by the Public Service Commission, Attorney General and Head of Public Service challenging a decision by the Labour court allowing civil servant to stay in office until after they are nominated to contest for a seat.
Justice Njagi Marete of the Employment and Labour Court had in March 2017 ruled that Section 43(5) of the Elections Act is unconstitutional and declared that public officers can only leave office to participate in the election after conclusion of party nominations.
Section 43(5) of the Elections Act, 2011, states that a public officer who intends to contest an election shall resign from public office at least six months before the date of the election.
Justice Marete had ruled that the provision was discriminatory and issued a permanent order barring the Independent Electoral and Boundaries Commission (IEBC) from disqualifying any civil servant from seeking an elective position for not vacating office six months to the election date.
The appellate court, however, ruled that Section 43(5) of the Elections Act is valid and in conformity with Articles 99, 180 and 193 of the Constitution which provides that a person seeking to be elected to a political office must not be a State or public officer.
“A reading of the Constitution makes it abundantly clear that for a person to be eligible for election in a general election, the person seeking to be elected must not be a State officer or other public officer except for the categories of persons to whom the exclusion applies,” they ruled.
They stated that the need for public officers to resign is important to promote neutrality during the elections given that the law provides that an appointed State or public officer should not engage in any political activity that may compromise their neutrality.
The judges declared that it will be absurd and impossible for civil servants seeking elective positions to remain in office until the last day of elections since their decisions while in government employ can influence the outcome in their favour.
“The importance of political neutrality and impartiality of public officers during the term of employment cannot be overemphasised. We therefore fully agree on the necessity for public officers desirous of running for elective posts to resign in good time,” they ruled.
The appellate court further held that IEBC is working on strict timelines in preparation for the election, including printing of ballot papers bearing candidates vying for each elective position, which cannot be possible if civil servants do not resign in good time.
In any event, the judges said the Labour court illegally determined the constitutionality of Section 43(5) of the Elections Act when the judge had no jurisdiction since the dispute did not involve an employee-employer dispute.
“For want of an employee-employer relationship, we find and hold that the Employment and Labour Relations Court arrogated itself jurisdiction that exceeded that conferred upon it by law, which renders its decision a nullity,” said the appellate judges.
They found that the Labour court only has power to determine employment and labour relations disputes and that the judge should have referred the petition to the High Court which was the proper forum to determine constitutionality of the Election Act.
On the Labour court finding that Section 43(5) of the Elections Act was passed without public participation, the appellate court ruled that the requirements for public participation had not come into effect at the time the Act was enacted in 2011.
