“Kenyans intended that Chapter Six and Article 73 will be enforced in the spirit in which they included them in the Constitution. The people of Kenya did not intend that these provisions on integrity and suitability for public offices be merely suggestions, superfluous or ornamental; they did not intend to include these provisions as lofty aspirations.” – Trusted Society of Human Rights Alliance Vs the AG & Others, Nairobi, HC Pet. No. 229 of 2012.
The quote above succinctly answers the nagging questions about the rationale of the legislating behavior and conducts of public officers, and whether such will yield the desired results. Chapter Six of the Constitution provides Leadership and Integrity requirements while the Public Officer Ethics Act, 2003 (POEA), the Leadership and Integrity Act (LIA), 2011 and other relevant regulations prescribe the codes of Ethics and Conduct for public officers.
Despite these raft of laws, major concerns have been the success as to the implementation of and adherence to the integrity requirements in Kenya. These stem from the understanding that people of questionable character are still elected or appointed to office while those in office don’t demonstrate the behaviour expected of them by these laws.
To better appreciate these laws, it is imperative to understand the background, the underpinning philosophy and the purpose for these legal provisions on integrity. The starting point is that laws do not just appear in a vacuum, they were enacted on a background of poor governance characterized by weak leadership and corruption leading to adverse effects on social, economic and political hygiene, eroded public confidence of the government that almost destroyed the nationhood of Kenya.
Further, enacting laws on integrity of leadership is premised on the true understanding that governance entails the sum total and results of decisions made by persons in public offices and that it was only reasonable and imperative to put in place specific and deliberate codes of behaviour and character as key requirements for persons entrusted to make such decisions in public offices.
The rationale of integrity provisions
The focus on integrity ideally is to be understood as emphasis on normative aspects regarding human behaviour based on values of honesty and probity rather than a legal imperative stricto sensu. It is reflected through inherent characteristics of an individual often acquired and imbibed through different levels of the life of the individual. It is equally observed that you cannot change or remake the established moral fabrics of the individual but you can straighten the creases and distortions by controlling and guiding human behaviour through sets of rules, codes and regulations with established rewards and sanctions.
It is, therefore, important to acknowledge the broader purposes and ends which these laws meant to serve. They underpin and espouse the cardinal principles and values of sound governance of transparency, accountability, efficiency and effectiveness among others as to be applied in decision-making in the public offices. These strong ethical requirements are aimed at enabling the provision of apt and quality service and consequently building public confidence and trust of the government. This is why the integrity of the holder of the office is key. The set of moral standards and ethical values espoused through specific codes of conduct and ethics demarcate the boundaries of behaviour for the office holders. Like the Ten Commandments of Moses, these codes also prohibit conducts like conflict of interest, favouritism, discrimination, falsification of record, misuse of public property, lack of respect and courtesy, and abuse of office that will devour the purpose, principles and values of public service.
Under Article 73, personal integrity, competence and suitability are prerequisites for any appointments. While certain moral and ethical requirements are to be fulfilled for persons aspiring for elections under Section 13 of LIA and Sections 24(1) (b) of the Elections Act, it also obligates that authority of public office should be understood as public trust and is be exercised in a manner that espouses public confidence.
Duty to implement integrity provisions
The duty to implement or oversee compliance with these provisions can be broadly discussed to be vested on these five entities: the independent institutions; the Legislature; the appointing authorities; the Judiciary and the citizen.
First, the EACC and IEBC are the independent institutions that are to enforce compliance with these laws. The EACC is mandated to oversee and enforce compliance with the integrity and ethics requirements. While the IEBC is responsible for ensuring that all persons for elective position have fulfilled the expected moral and ethical requirements under section 13 of LIA and Section 24 of the Elections Act.
Such institutions can only undertake their duties and exercise powers to the extent provided by the laws which is the major tool in enforcing these integrity provisions. However, gaps and weakness of these tools often make the enforcement mandates a big challenge. Key among these gaps include the lack of express provisions and procedures for vetting persons for elective position; lack of defined offences and punishments under LIA and POEA among others. The most notable challenge is Article 99 (3) which provides a wide path for a person indicted or even convicted of corruption and economics crimes to hung on and still get cleared for elective positions.
Second, the Legislature has the obligation to enact legislation establishing procedures and mechanisms for the effective administration of Chapter Six under Article 80. Such legislations are main tools that enable the responsible institutions to effectively enforce the integrity requirement. However, the High Court in Benson Riitho Mureith v J.W Wakhungu & 2 others observed that the LIA doesn’t contain a mechanism or procedure for dealing with issues of integrity as contemplated under Chapter 6. In the backdrop of weak legislative provisions, effective enforcement becomes a challenge.
Third, every appointing authority has the obligation to undertake a deliberate and elaborate integrity suitability assessments for persons to be appointed to public office. This obligation is set out clearly that people should be selected based on personal integrity competence and suitability. Therefore, it is the duty of the appointing authority to conduct background assessments of the persons intended for appointment in liaison with other enforcement agencies.
Fourth, the Courts have the obligations to interpret the laws in a purposive manner so as to illuminate the spirit of the laws. They have to construe the laws in a manner safeguarding the values and principles and enhancing to good governance. It is therefore vital for the courts to be mindful of such cardinal duties. The Courts have in some decisions come out to breathe life into the purpose and application of the leadership and integrity imperatives. The notable ruling in the Moses Lenolkulal case indicates the broader purpose and deeper appreciation of Chapter Six. The High Court declared provisions of law exempting suspension of a state officer prosecuted on corruption and economic crimes are in clear contradiction with Chapter Six which obligates all public officers to behave in manner that safeguards the dignity and honour of the office and promote public confidence in the integrity of the office.
The fifth are the citizens who have obligations to respect, uphold and protect the Constitution under Article 3 of the Constitution and Section 4(1) of the LIA that apportions responsibility on every person to implement the provision of the Leadership and Integrity. This duty can be fulfilled through the election of persons based on their sound character of integrity, or by seeking legal redress for any contravention of Chapter Six and integrity requirements. In both Watitu and Mumo Matemu, the Court of Appeal affirmed that any Kenya has the locus standi in seeking judicial redress on breach of Chapter Six provided the person acts in good faith and for public good.
In practical sense, application of integrity provisions underscore the public interest and policy imperatives in decision making in the public sector. The provision should be understood and applied on the understanding that public interest often trumps individual interest and rights especially where the public interest and good outweighs the individual rights. This is applied in the enactment and application of the anti-corruption laws, for example Laws on recovery of unexplained assets, where the suspect is required to prove the sources of wealth in question, and suspension of public officers from office pending conclusion of cases, against the right of presumption of innocence protected under principles of fair hearing.
Even in the existence of gaps in the laws, all will not be lost if the provision of integrity and regulations of ethics are understood and interpretated in a purposive manner to recognize the background and rationale of enacting such laws, which was to enhance good governance. Therefore, the responsibility lies with all actors, notably, all arms of government in exercising delegated powers and the citizens in their civic duty in exercising the inherent sovereign powers and consider the strict integrity test for persons for elective positions.
Laws and regulations like seeds can only germinate and thrive under healthy and fertile soils of strong values founded on sound ethical systems. One cannot use the law as the only tool to change a society; a good law cannot change a bad society as it is well put by Baron de Montesquieu, the French philosopher in his book, The Spirit of Laws (1748).
“When once the principles of government are corrupted, the best laws become bad, and turn against the state: but when the principles are sound even bad laws have the same effects as good; the force of the principle draws everything to it,” he avers.
It is thus imperative to consider extra-legal mechanisms of realizing the full implementation of integrity requirements through working on the roots and conscience of the society. This lies at the heart of the individual and institutional frameworks built over a long time. “Morality,” Martin Luther King Jr observed, “cannot be legislated, but behaviour can be regulated. Judicial decrees may not change the heart but they can restrain the heartless”.