The minister, who is the Senator-elect for Kisumu County, wants the court to stop the swearing in of the elected leaders until the next government is legally in place.
He has termed as an “illegality” the presidential directive that required all ministers and their deputies elected during the general elections to the positions of senators, governors, MPs and Women Representatives to relinquish their posts and asked the court to reaffirm the position.
He said there was no legal foundation requiring elected ministers and their assistants to resign, adding that the issue had been compounded by the Supreme Court case challenging the outcome of the presidential poll.
The petition certified as urgent on Tuesday is grounded on the premise that resignations can only be validated after the swearing in of the next president.
“The government is now in transition to a devolved system and as such the ministers and their assistant elects are not holding two offices while remaining in the current office, their elected offices will become functional upon their swearing in,” Prof Nyong’o’s petition read in part.
He said in his application that a vacuum would be created as the Supreme Court decision regarding the presidential election had a spill over effect on the formation of the Cabinet.
“While awaiting the decision of the Supreme Court with regards to the presidential election challenge, absence of a cabinet would occasion a crisis as there are several constitutional organs requiring ministerial representation and are necessary for the management of the state such as the national security service,” the petition said.
The petition to be heard on Thursday was lodged at the High Court in Nairobi ahead of the scheduled MPs and senators swearing in.
He has named the head of the public service and enjoined the Clerk of the National assembly as respondents in the case.
The minister said the Supreme Court case 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 since resignation has not been contemplated in the constitution,” the petition reads.
He said a resignation would amount to a situation where the office of the acting president exists with no cabinet ministers pending the transition to the devolved government, consequently the directive was made without regard to the constitution and is therefore null and void.
Prof Nyong’o is seeking orders to quash the directive and that it be declared illegal.
He also sought an order restraining the clerk of the national assembly from swearing in the senators, governors, members of national assembly and women representatives until the next president is sworn in.
He argued that it was only the next president who had the prerogative to form the devolved government that will establish the elected posts lawfully.
- Daily Nation
