Prof Nyong’o, the Kisumu County senator, said the resignations would cause a constitutional crisis. He wants the court to stop the swearing-in of ministers who are elected members of Parliament until the next government is in place.
Last week President Kibaki directed all ministers and assistants ministers elected as senators, governors, MPs and women representatives to relinquish their posts.
Prof Nyong’o said there is no legal basis for the ministers to resign. The petition was certified as urgent and will be heard on Thursday, the same days the elected officials are scheduled to be sworn in.
“The government is now in transition to a devolved system and as such, the ministers and their assistants elect are not holding two offices while remaining in the current office. Their elected offices will become functional upon the swearing in,” the petition read.
He said a power vacuum would be created as the Supreme Court decision over the disputed Presidential election had a spill-over effect on the formation of the Cabinet.
“Absence of a Cabinet would occasion a crisis as there are several constitutional organs requiring ministerial representation, such as the national security service and are necessary for the management of the state,” he said.
The head of the Public Service and secretary to the Cabinet Francis Kimemia and the clerk of the National Assembly Justin Bundi are respondents in the case.
The minister said the case in the Supreme Court had legally extended the mandate of the caretaker government currently in place.
“The right to remain in office can only be lost in the event that the elected minister or assistant minister takes oath of another office and not upon resignation,” he said.
-Business Africa
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