Prof Anyang’ Nyong’o petition declined by High Court
The High Court on Thursday declined to stop orders asking cabinet ministers elected for various public seats to resign as directed by President Mwai Kibaki.
Justice Isaac Lenaola said “the law was clear that oath of office cannot be taken while one was still a holder of another office.”
He was responding to a petition brought before the High Court by Medical Services Minister Prof Anyang’ Nyong’o challenging the presidential order that required ministers elected for public offices to resign ahead of their sworn in.
The petition will however continue to a full hearing on April 4.
Justice Lenaola told Prof Nyong’o to “either resign or step down as a Senator” saying the law dictated he cannot take oath as Senator and at the same time continue holding his ministerial position.
Ministers resigning ‘unconstitutional’
Prof Nyong’o had wanted the order requiring ministers to resign declared unconstitutional.
He also sued the Head of Public Service Francis Kimemia for ordering elected cabinet ministers to resign saying this would create “a vacuum” in government more so with the outcome of the contested presidential election still pending at the Supreme Court.
He argued that the contest at the Supreme Court had extended the mandate of the current government hence ministers resigning before a final ruling is delivered would precipitate a constitutional crisis in the country.
Justice Lenaola also said the court had no mandate to stop the swearing in of persons duly elected and gazzetted from taking up office.
In the petition, Prof Nyong’o sued Mr Kimemia and the clerk of the national assembly, however none had responded by Thursday.
Prof Nyong’o moved to court on Tuesday to block the directive that all ministers and assistant ministers who won various seats in the March 4 elections resign.
Prof Nyong’o who is the Kisumu Senator sought the order from the High Court on grounds that ministers and their assistants can only resign once a new cabinet has been sworn in.
Last week, Mr Kimemia ordered through a presidential directive that ministers and their assistants who were elected for various public seats relinquish office to pave way for the new government.