President Kibaki, in an order communicated by Head of Public Service Francis Kimemia on Tuesday, warned that the ministers did not qualify to assume their new offices unless they resigned.
But in a rejoinder, Mr Odinga stated that there was no constitutional provision requiring ministers to resign before they qualify to take their new posts.
"The status and tenure of the President, the Prime Minister, the Vice President, Cabinet Ministers and Assistant Ministers are governed by Section 12 of the Sixth Schedule of the Constitution of Kenya and the National Accord Reconciliation Act,” Mr Odinga said in a statement.
"There are no provisions requiring Ministers to resign in the manner stated by the Head of Public Service through the Government Spokesman,” he said.
The PM insisted that the law is clear that the President, the PM, the Vice President and all ministers remain in office until a duly elected president is sworn in and new cabinet secretaries appointed.
"Since the tenure of the President and the current Government has exceeded the term of five years, the President and the Cabinet, which includes the Prime Minister and the Vice President, are in office as a caretaker Government and are only exercising executive power during a temporary incumbency,” he noted.
“It should be noted that the incumbent President, as a caretaker, amongst other things cannot nominate or appoint or dismiss Ministers and the State or Public Officers,” Mr Odinga argued.
On Tuesday, President Kibaki through Head of Public Service Francis Kimemia said at the advice from the Speaker of the National Assembly and Attorney General the ministers and their assistants should resign immediately.
“So as to qualify to be sworn in by the Clerk of the National Assembly, governors, senators, women representatives and members of parliament who were elected should resign immediately,” said a letter signed by Mr Kimemia.
- Daily Nation
