OPINION: High Court erred in law and fact on the matter of Wetangula holding a political office

On Friday 7th February, 2025 the High Court sitting in Nairobi’s Milimani made a judgement that among other issues pronounced itself on the question of whether it was constitutional for Speaker of the National Assembly to hold a political office and speakership. Hereunder are some of the issues arising from the judgement;

That the Speaker cannot hold a political office;

Article 77(2) of the Constitution provides that an appointed State Officer shall not hold office in a political office. The Speaker is NOT an appointed State Officer. The Speaker is an elected State Officer and can hold a political office.

Article 106 of the Constitution which provides for qualifications for election as a Speaker does NOT provide that a person shall be disqualified for election as a Speaker, if he holds a political office.

Article 38 of the Constitution confers and guarantees political rights on every citizen and provides that every adult citizen has the right, without unreasonable restrictions to be a candidate for office within a political party of which the citizen is a member and if elected, to hold office.

That the Speaker is not a Member of the National Assembly;

Article 97 of the Constitution provides that the Speaker is a Member of the National Assembly.

The Speaker of the Parliament of Uganda does not hold a political office;

The Speaker of the Parliament of Uganda Hon. Anita Among is an elected Member of Parliament for Bukedea District.

The Speaker of the National Assembly of Tanzania does not hold a political office;

The Speaker of the National Assembly of Tanzania Hon. Dr. Tulia Ackson is an elected Member of Parliament for Mbeya Constituency.

That the Speakers in presidential systems do not hold political offices;

The Speaker of the US House of Representatives is a Member of the Republican Party. The Speaker of the US Senate is the Vice President of the United States. The Speakers of the US Congress also play the role of leaders of majority parties within the party caucuses and on the floor of the Houses.

That the Speaker is not exempted from the provisions of section 12 of the Political Parties Act which prohibits public officers from being eligible to hold political offices

Section 12(2) of the Political Parties Act provides that the provision shall not apply to the President, Deputy President, a Member of Parliament, Governor, Deputy Governor or a member of a county assembly. Section 12 DOES NOT apply to the Speaker of the National Assembly as he is a Member of Parliament.

That by holding a political office, the Speaker “evokes appearance of bias”

Article 122 of the Constitution ring fences the impartiality of the Speaker by providing that the Speaker has no vote in any decision making by the National Assembly. The Speaker does not count in reckoning the quorum of the National Assembly for purposes of voting.

The Court “held” that the Speaker cannot hold a political office

The court DID NOT issue any orders finding that the Speaker cannot hold a political office. Out of the 34 prayers of the Petitioners, the Court only gave 3 orders which all relate to the quashing of the ruling of the Speaker of 6th October, 2022 on the issue of the Majority and Minority Parties.

By Order No. 4 of the judgement, the Court expressly declined all the other 30 prayers that were sought by the Petitioners. The 30 prayers of the Petitioners included those that sought to declare that the Speaker cannot hold a political office.

That the Court “declared” Azimio as the Majority Party and Kenya Kwanza as the Minority Party.

The court DID NOT declare any Party as the Majority and Minority Party. The Court only quashed the ruling of the Speaker of 6th October, 2022 on the Majority and Minority Parties in the National Assembly. The question as to which party is the Majority or Minority Party is one which can only and has to be determined by the Speaker following the Court judgement.

The court held that the question as to which party or coalition of party is the majority party was determined on election date;

Article 108 of the Constitution defines which Party is the Majority and Minority Parties. The question of which party is the Majority and Minority Party is not static but is one which evolves depending on the party formations in the House.

In determining the question at any given time, one would be required to give regard to post-election coalition agreements and any vacancies arising from elections petitions, resignation or death of a Member.

To determine whether PAA, UDM, MCCP and MDG parties remain constituent parties of Azimio Coalition as it were at election date, one will require current information from the Registrar of Political Parties.

[The writer is a legislative affairs analyst and the publisher of The Legislative Index KE; a digital platform that covers the legislative agenda in Kenya including the Senate, National Assembly and County Assemblies. X: @Legislature_KE | @MalibaArnold]