The Ministry of Local Government has formally been requested to enforce the Constitution and the judgment of the Constitutional Court by directing affected councillors to vacate from office and repay back the emoluments in full.
In a letter to the Ministry’s Permanent Secretary dated 5th February, 2021, Governance activist, Isaac Mwanza, who had petitioned the Court said it was a fact that although the Constitutional Court’s judgment is a new event, the constitutional provision governing the resignation of councillors, has been in force and has remained the same since its enactment on 5th January, 2016.
“The affected councillors cannot therefore continue to occupy office, and ought to immediately cease to present themselves as councillors. That being the case, that is, that they ceased to be councillors thirty days from the day on which they delivered their letter of resignation to the Mayor or the Council Chairperson, they must reimburse, in full, all funds which they received from the date on which they were to vacate from office (i.e., 30 days from the date on which they handed in their letter of resignation,” read part of the letter.
On 4th February, 2021, the Court, in its Judgment, held that a councillor who resigns from his or her elected office, does not have the option to rescind his or decision to resign, once they have delivered their letter of resignation to the Mayor or Council Chairperson and that the latter have no power to accept or reject such resignation.
The Court further held that Article 157(2)(b) of the Constitution situates the effective date of resignation as the end of the 30-day period which, the Court stated, is not intended to be a period during which a councillor may change their mind and rescind that decision.
According to Mr Mwanza, the filling of vacancies which arise after the affected councillors have vacated office will not be necessary as the Constitution proscribes the holding of a by-election within 180 days of a general election.
“In effect, this entails that the seats vacated by these former councillors, may not be filled until 12th August 2021,” stated the letter.