Questions emerge on eligibility of opposition candidate in by-election

The opposition may have unwittingly given President William Ruto's UDA a through pass after it picked popular musician, Newton Kariuki, aka Karish, as its candidate for the Mbeere North parliamentary by-election.

Kariuki's eligibility as a Democratic Party candidate was put in doubt on Wednesday, after it emerged that the Muminji MCA had not yet resigned as a member of the Devolution Empowerment Party, which sponsored him in 2022.

The benga artist is a three-term MCA.

Embu County Assembly Speaker Josiah Thiriku told The Standard that he had not received any communication about his change of party.

"The law requires one to be a member of a political party for at least 60 days before the elections. Secondly, if an elected member switches party, he or she stands out of office, but on this,the Speaker has to be notified, and no one has notified me of either Karish or Duncan Mbui switching, he said. 

Mbui, who represents Evurore Ward, is an Independent candidate but is eyeing the parliamentary seat through Moses Kuria's Chama cha Kazi. Also in the race is Leonard Muthende of UDA. 

Although elected leaders wishing to contest are protected by Section 43 of the Elections Act, legal scholars maintain that for one to be eligible to contest through another political party, they ought to have resigned from their party, communicated the decision and later resigned from the elective position.

"A public officer who intends to contest an election under this Act shall resign from public office at least six months before the date of the election. A public officer who intends to contest in a by-election under this Act shall resign from public office within seven days of the declaration of a vacancy. This Section shall not apply to the President, the Deputy President, Member of Parliament, a county governor, deputy county governor and a member of a county assembly,” reads the Act.

But senior counsel Paul Mwangi and Charles Kanjama maintained that Section 14 bars one from being a member of two political parties at the same time.

The Section states" “A member of a political party who intends to resign from the political party shall give a written notice before his resignation to—(a) the political party; the clerk of the relevant House of Parliament, if the member is a Member of Parliament; or (c) the clerk of a county assembly, if the member is a member of a county assembly. The resignation of a member of the political party shall take effect upon receipt of such notice by the political party or clerk of the relevant House or county assembly.”

According to the law, the political party is expected to notify the Registrar of Political Parties within seven days. 

Kanjama said under Article 194 of the Constitution, resigning from the political party makes the elected leader lose his position.

“The Constitution explains the process of the vacation of the office of a member of the county assembly, stating that having been elected to the assembly as a member of a political party, the member resigns from the party, or is deemed to have resigned from the party and therefore could not continue drawing a salary from the public coffers,” he argued.

On his part, Mwangi said if an elected leader resigned and continued to draw a salary, such a person would be liable for a criminal offence and could be surcharged and forced to return the money.

“The reason why the Independent Electoral and Boundaries Commission issues notices for public officers or those who wish to contest through certain political parties to quit is so that they can later countercheck to determine whether they comply with the law. The Speaker must be aware and the Registrar of Political Parties must be aware of the resignation of an elected leader,” he said.

But DP Party Leader Justin Muturi yesterday maintained that their candidate had resigned from his previous party.

“I know he is a member of the DP party, though I may not have details as to when he resigned, but anybody having doubts is free to confirm with the Office of Registrar of Political Parties. There could be some people who may want to use some technical issues to bar the candidate since he is the first among equalss but they won’t succeed, said the former Attorney General.

Efforts to get a comment from the MCA did not succeed as he did not pick up our calls nor receive our messages.

Kariuki is the United Opposition candidate after former Deputy President Rigathi Gachagua's Democracy For Citizens Party and former President Uhuru Kenyatta's Jubilee Party withdrew from the race to support him.