Ministers Elected in Polls to Give Up Seats, Says Attorney General

Kenya Attorney General Githu Muigai

Thirty four Members of the Cabinet will be required to vacate office immediately they are sworn as Governors and Senators, the Attorney General has said.

In an advisory letter addressed to the Head of Public Service Francis Kimemia, Attorney General Prof Githu Muigai said the law will automatically force them out of office.

Among the Cabinet ministers who will have to relinquish their positions are: Mutula Kilonzo (Education, Senator-elect_Makueni), Kiraitu Murungi (Energy, Senator-elect Meru), James Orengo (Lands, Senator-elect Siaya), and Anyang’ Nyong’o (Medical Services-Senator-Kisumu) and Otieno Kajwang’ (Immigration, Senator-elect Homa Bay).

Others are Moses Wetang’ula (Trade Senator-Bungoma), Mohamed Kuti (Livestock, senator-elect Isiolo), John Munyes (Labour, Senator-Turkana), Yusuf Haji (Defence, Senator-elect Garissa), Dan Mwazo (Tourism, Senator-elect Taita Taveta) and Chris Obure, (Senator-elect Kisii).

Planning Minister Wycliff Oparanya and his Fisheries counterpart Jeffa Amason Kingi have been elected as governors in Kakamega and Kilifi counties respectively.

Their colleagues Naomi Shaaban (Gender), Esther Murugi (Special Programes), Katoo ole Metito (Internal Security), Dalmas Otieno (Public Service), Mohamed Elmi (North Eastern Development), Jamleck Kamau (Nairobi Metropolitan), Ababu Namwamba (Sports) and Paul Otuoma (Local Government) retained their seats as MPs.

Assistant ministers Josephat Nanok, Hassan Joho, Peter Munya and Sospeter Ojamoong are new governors for Turkana, Mombasa, Tharaka and Busia respectively.

Other assistant ministers who should relinquish their positions on being sworn in to their new positions are David Musila (Senator, Kitui),Gonzi Rai (MP, Kinango), Mohamed Maalim (MP Mandera West), Kareke Mbiuki (MP, Maarai), Cecily Mbarire (MP, Runyenjes), Kabando wa Kabando (MP, Mukurwe-ini), Asman Kamama (MP, Tiaty), William Cheptumo (MP, Baringo North), Joseph Nkaissery, (MP, Kajiado Central) and Katoo Metito (MP Kajiado South).

Quoting articles 77(1) and 152(3) of the Constitution, the AG said they will be required to relinquish their seats as the law prohibits Cabinet Secretaries from being MPs.

“An individual member of the Cabinet may lose the right to remain in office in the event that the Cabinet member is subsequently elected and takes oath of another office,” said the AG.

Prof Muigai was responding to the letter in which Mr Kimemia had also sought opinion following the Charles Nyachae led Constitution Implementation Commission’s assertions that Prime Minister Raila Odinga, Vice President Kalonzo Musyoka and other cabinet ministers were in office illegally.

In a letter to President Kibaki, Mr Nyachae argued that their tenure officially ended on March 4. He cited the new constitution which says that the tenure of cabinet ministers elapses immediately following the first General Election.

The AG however said the cabinet’s tenure has been safeguarded by the sixth schedule of the National accord that led to the formation of the coalition government in 2008.

“The framers of the Constitution provided for the continuity in the government in section 12 of the sixth schedule,” he said.

“Thus the Cabinet appointed under the provisions of the former Constitution is deemed to continue in office unless terminated in the manner provided in section 12 of the sixth schedule,” he explained.

Prof Muigai said the schedule allows them to remain in office until a new cabinet is appointed by the President Elect.

- Daily Nation