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2020 court ruling brings confusion on MCAs resigning before vying for MP

IEBC sets the record straight

IEBC Chairman Wafula Chebukati

The Independent Electoral and Boundaries Commission (IEBC) has issued a clarification on whether sitting ward representatives should resign if they would like to contest for Member of Parliament (MP) seats.

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According to IEBC Chairperson Wafula Chebukati, it is not mandatory for Members of County Assembly (MCAs) to vacate office on February 9, 2022 but will have to do so when submitting their nomination papers to the Returning Officer.

“The Commission wishes to clarify that, according to Article 99 (2) of the Constitution of Kenya 2021, as read together with section 43 (5) and (6) of the Elections Act, MCAs who wish to contest as member of Parliament should not resign by February 9, 2022 but should resign before submitting their nomination papers to the returning officer to contest as a member of Parliament,” reads the statement in part.

The statement comes amidst an ongoing public debate on the supposed disqualification of a sitting Member of a County Assembly (MCA) from being elected as a Member of Parliament (MP) on grounds that they need to resign by the 9th of February, 2022.

In 2021, the High Court through Justice Anthony Mrima ruled that elected leaders who intend to run for any position in the August General Election don’t have to resign from their current positions.

However, the judgment was contrary to what had been delivered by Justice Weldon Korir on October 7, 2020.

The IEBC statement also pointed out that the commission will give further advice once the Court of Appeal delivers its final ruling.

The matter had been raised in court during the hearing of an election petition on the Gatundu North member of National Assembly position.

“Later, on 7th October 2020, the High Court in Hon. Clement Kungu Waibara Vs Hon. Ann Wanjiku Kibe and IEBC, held that the election of Ann Wanjiku Kibe who contested for the position of Member of Parliament whilst she was a sitting MCA was in violation of article 99 (2) (a) and (d) of the constitution. On this Premise, the Honourable Court proceeded to declare the seat of the Gatundu North Constituency vacant… The Court of Appeal heard the matter and reserved 18th of March 2022 for Judgement," adds the IEBC statement.

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