Monday, March 13, 2017

Mr Mwangi is no lawyer

Rhetoric and hyperbole form the main oratorical tools of politicians seeking public office. The grander their verbal theatrics, the theory goes, the better they connect with their constituencies and the likelier they are to get elected (or appointed) to high office. In Nairobi's Starehe Constituency, Boniface Mwangi is seeking to be elected as its representative in the national Assembly in the 2017 general election. As part of his against-the-establishment persona that he has cultivated with impressive vigour since 2012, Mr Mwangi makes the following allegation,
The Kenya constitution forbids Cabinet secretaries from political party activities.The people supposed to uphold the laws are breaking them. @bonifacemwangi
He had earlier declared with authority that,
A cabinet secretary taking part in a political rally is illegal.President @UKenyatta the cabinet officers at your rally are breaking the law. @bonifacemwangi 
The law is not clear-cut. The provisions of Chapter Six of the Constitution on leadership and integrity and Articles 152 and 153 of the Constitution are silent on whether or not Cabinet Secretaries (and their counterparts in the county government, Members of County Executive Committees) are forbidden from taking part "political party activities" or in "political rallies". The Leadership and Integrity Act (No. 19 of 2012) provides at section  23 for the political neutrality of State officers and public officers. It states that
(1) An appointed State officer, other than a Cabinet Secretary or a member of a County executive committee shall not, in the performance of their duties—
(a) act as an agent for, or further the interests of a political party or candidate in an election; or
(b) manifest support for or opposition to any political party or candidate in an election.
(2) An appointed State officer or public officer shall not engage in any political activity that may compromise or be seen to compromise the political neutrality of the office subject to any laws relating to elections.
(3) Without prejudice to the generality of subsection (2) a public officer shall not—
(a) engage in the activities of any political party or candidate or act as an agent of a political party or a candidate in an election;
(b) publicly indicate support for or opposition against any political party or candidate participating in an election.
This section of the law has not been subjected to the interpretation of the High Court which is the only institution charged with the responsibility of interpreting the Constitution. For example, does sub-section (1) mean that CSs and MCECs can "act as an agent for, or further the interests of a political party or candidate in an election" or are they prohibited as "public officers", in terms of sub-section (3), from "engag[ing] in the activities of any political party or candidate or act[ing] as an agent of a political party or a candidate in an election"?

Mr Mwangi has many virtues. Being a lawyer is not one of them. Being a constitutional lawyer is definitely not one of them. He should stop pretending that he possesses definitive authority on knotty politico-legal questions that are yet to be definitively determined.

No comments: