That State officers cannot engage in politics is a narrative that continues to gain traction with the larger public. At the heart of this momentum is media. Though theirs is a gallant effort at auditing governance, it should be emphasised that their assessment is built on a misconstruction of law.
Uncertain constitutional provisions can only be understood when construed against the relevant principles of constitutional interpretation. Among others, a constitution should not only be interpreted in a manner that advances the rule of law and human rights, but any limitations on rights must be on the information of Article 24 and demonstrable cause (the jurisprudence of the court in Randu Nzai Ruwa and 2 Others vs. AG and 1 Other eKLR was that where the State is the limiting agency, it must show, rather than merely allege).
The perception that State officers shall not engage in politics must be juxtaposed against the right to political participation under Article 38. But is the law even explicit that State officers shall not engage in politics? Certainly not! What the law provides is that State officers (apart from cabinet secretaries or members of county executive committees) should not manifest political bias in an election, commit electoral malpractice or allow individual political bias to affect their professional judgment (Section 23 and 24 of the Leadership and Integrity Act, 2012).
Rather than stopping State officers from engaging in politics, the proper thing (as already manifested in our laws) would be to adopt a bias test in auditing such participation. An adoption of the former, which some clamour is to read a contradiction into the Constitution as it would mean that state officers cannot enjoy the provisions of Article 38, would be mistaken. Equally, it would violate the principles of constitutional interpretation lifed under Articles 20 and 259.
Kenya’s Constitution is not the only one that has attempted to separate public service from politics. Where it had encountered similar problems of interpretation, in 1993 the US Congress amended the Hatch Act of 1939 (which had sought to limit the political activities of federal agents) to specifically enumerate activities that were allowed vis a vis those that were prohibited.
Permitted were any activities that wouldn’t occasion a conflict between personal and functional interest and from which bias couldn’t be imputed. Among others, it allowed federal agents to campaign and run for office in non partisan elections, register and vote, attend political rallies, engage in party politics, and make campaign speeches and express opinions.
Prohibited were acts of engaging in politics while on duty or in government offices, among others. In their Advisory Opinion No. 98-12 on the activities of Public Officers and State employees who work on political campaigns, including fund-raising, the New York State Ethics Commission similarly adopted the bias test. And this is actually in sync with section 43 our own Elections Act, 2011, which states:
“Participation in elections by public officers: (1) A public officer shall not— (a) engage in the activities of any political party or candidate or act as an agent of a political party or a candidate in an election; (b) publicly indicate support for or opposition against any party, side or candidate participating in an election; (c) engage in political campaigns or other political activity; or (d) use public resources to initiate new development projects in any constituency or county for the purpose of supporting a candidate or political party. (2) A public officer who contravenes subsection (1) commits an offence and is liable, on conviction, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years, or to both. (3) A person who knowingly aids in contravention of subsection (1) commits an offence and is liable, on conviction, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years, or to both such fine and imprisonment. (4) A candidate who knowingly aids in contravention of subsection (1) shall not be eligible to contest in the election.”
As long as it doesn’t affect their professional standing, public officers, like every other Kenyan, have a right to political opinion.