COURT'S RULING ON DOUBLE EMPLOYMENT

Background

Professor Ben Murumbi Sihanya and Orange Democratic Movement filed ELRC Petition on 28th September, 2020 contesting a determination and/or decision contained in the Universityof Nairobi  letters dated 18th August, 2020 and 15th September, 2020 declaring that; by holding office as the Chairperson of the Disciplinary Committee of the ODM Party, the 2nd Petitioner while serving as a public officer, to wit; a lecturer at the university of Nairobi, Prof. Sihanya was in violation of Article 77(2) of the Constitution, Section 23 of the Leadership and Integrity Act, 2012 and Section 12 of the Political Parties Act (v).

Issues in dispute

1. A declaration be and is hereby issued that whereas Article 77(2) of the Constitution was intended as an absolute bar against state officers holding office in political parties or participating in political activities, Section 12 of the Political Parties Act and Section 23 of the Leadership and Integrity Act were not similarly intended for public officers.
2. (ii) A declaration be and is hereby issued that holistically and purposively construed, Section 12 of the Political Parties Act and Section 23 of the Leadership and Integrity Act were intended to prevent overt, blatant and/or flagrant manifestations of political bias by public officers and that interfere with the rights and fundamental freedoms of other persons.
3.  (iii) A declaration be and is hereby issued that the functions of the 1st Petitioner as a chairperson and/member of the disciplinary tribunal of the Orange Democratic Movement Party are not incompatible with his duties as a Professor at the University of Nairobi’s School of Law or at all and/or do not compromise the political neutrality of the 1st petitioner as alleged or at all.

Findings

In its defense, the Ethics and Anti-Corruption Commission outlined that the appointment of the Professor. Sihanya as the chairperson of the Disciplinary Committee of Orange Democratic Movement whilst he held the position of Lecturer in a public university violates Article 77(1) and (2) of the Constitution read with Article 80(c) and Section 52(1) of the Leadership and Integrity Act. 15. EACC further stated that Section 12 of Political Parties Act, 2011 debars a public officer from holding office in a political party and or engaging in political activity that may compromise or be seen to compromise the political neutrality of that person’s office.

Determination

Following the above exegesis, and in answer to issues (i) and (ii) above the Judge Hon. Mathews N. Nduma in his judgement delivered virtually on 9th December, 2021 observed that the action by the respondent in giving the 1st petitioner opportunity to elect to remain a lecturer at the University of Nairobi or opt to become the Chairperson of the Disciplinary Committee of Orange Democratic Movement was lawful, fair, just and in accordance with the Leadership and Integrity Act and did not violate any of the rights and or freedoms of the petitioner set out in this petition or at all. 39. Accordingly, and in answer to issues (i), (ii) and (iii) above, the petition lacks merit and is dismissed with no order as to costs.