The Constitution is still Speaking.1. Article 38(2)(c) of the Constitution provides that every CITIZEN of this country has a constitutional right to be a candidate for a public office.
Article 99(2) of the Constitution further provides that a person is disqualified to be elected as a Member of Parliament if the person is a state officer or public officer OTHER than a Member of Parliament.3.
Additionally, Article 137(2) of the Constitution provides that a person is not qualified for nomination as a presidential candidate if the person:(a) owes allegiance to a foreign state;(b) or is a public officer or is acting in any state or public officer.
It is worth noting that there is however an exception to this requirement. Article 137(3) of the Constitution provides that Article 137(2)(b) shall NOT apply to a President, Deputy President or a Member of Parliament.
Simply, put the Constitution does not require the President, Deputy President or an MP as public officers to resign to run for the presidency or indeed any other public office.5.
The reason for this is that the Constitution did not envisage that at any time there would be a vacuum in these offices and hence the reason why if you peruse through the terms of office for all elected state officers for instance that of the President and the Deputy President, their term expires when the next President is sworn in terms of Articles 142 and 148 of the Constitution.6.
The Elections Act, 2011 further embodies the principles behind Articles 99(2)(a) and 137(3) of the Constitution in section 43(5), (5A) and (6) by simply providing that whereas a public officer is required to resign six months from the date of election, the requirement shall NOT apply to a President, Deputy President, MP, Governor, Deputy Governor and MCA.7.
Whereas it is shocking that there seems to be brewing debate including applications in court allegedly arguing on several grounds including that the state officers described in Article 137(3) of the Constitution and the Elections Act, need to resign before vying for public office, from the highlighted legal provisions, indeed we can conclude by saying that there is nothing more useful to add to clear provisions of the law.
Certainly, any debate contrary to the law is intended to create confusion, and is also frivolous, vexatious, a pure waste of time and a splitting of the hairs exercise!8.
One would wonder why any person would want to close their ears when the law is speaking and shouting loudly, but it is obvious that this is just another “unfounded” derail tactic lakini as is usual:Mungu Mbele.
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