REPUBLIC OF KENYA
OFFICE OF THE PRIME MINISTER
DIRECTIVE TO MINISTERS RESIGN:
The status and tenure of the President, the Prime Minister, the Vice President, Cabinet Ministers and Assistant Ministers are governed by Section 12 of the Sixth Schedule of the Constitution of Kenya and the National Accord Reconciliation Act.
There are no provisions requiring Ministers to resign in the manner stated by the Head of Public Service through the Government Spokesman.
There are self-executing provisions of the Constitution that prohibit members of the Executive as a whole from taking seats in the legislature and as set out in Section 99 (2) of the Constitution.
The Attorney-General was therefore correct in his interpretation of this matter and the clear position is as follows:-
1. The persons occupying the position of President, the Prime Minister, the Vice President, Cabinet Ministers and Assistant Ministers remain in office until the assumption of office by a duly elected President; and Cabinet Secretaries have been appointed. Since the tenure of the President and the current Government has exceeded the term of five years, the President and the Cabinet, which includes the Prime Minister and the Vice President, are in office as a caretaker Government and are only exercising executive power during a temporary incumbency.
2. It should be noted that the incumbent President, as a caretaker, amongst other things cannot nominate or appoint or dismiss Ministers and the State or Public Officers.
3. The Statement of the Head of Public Service can only be relevant in respect of Cabinet Secretaries appointed after the conclusion of the General Elections.
The purported directive on this matter from the Head of Public Service has therefore no constitutional or legal foundation. It is misleading and inaccurate and should be disregarded.
For the avoidance of doubt, the Grand Coalition Government is still intact and in place led by the President and the Prime Minister. The Coalition Government at the level of President, Prime Minister, Vice President and Ministers will stand dissolved when the duly elected President following the first General Elections under the New Constitution, takes the oath of office.
Rt. Hon. Raila A. Odinga, EGH, MP
Wednesday, March 20, 2013