By David Wanjala
There was public uproar recently when the Office of the Director of Public Prosecutions announced that it would prioritise cases dealing with sexual and gender-based violence, terrorism and financing and those that directly impact elections over corruption-related cases heading into the August 9 General Election.
Prosecuting leaders suspected of corruption, DPP Noordin Haji added, will not bar them from contesting, and challenged voters to look into the aspirants whose cases are still under investigation in Court and those named by the Ethics and Anti-Corruption Commission and make informed decisions. The ODPP, in essence, suspended prosecuting, for now, those who are charged with corruption, especially those who are campaigning. He doesn’t want, he said, to make the fight against corruption a campaign tool.
Outrageous, right? Isn’t man, irrespective of his status, equal in the eyes of the law? So a chicken thief today will be pursued and jailed as usual, but the politician will be allowed ample time to seek office first and, in the event he wins, afforded the luxury and power of his new office to fend off the charges of corruption! Isn’t it defeatist on the part of the ODPP, with the mandate, power and resources to turn to ‘Wanjiku’ in these challenging times for help in executing their mandate?
But wait a bit. What confined Haji into the unfamiliar corner? You might be shocked to learn that our political leaders, many of whom also double up as our legislators in both Houses of Parliament and the County Assemblies, actually insured themselves against the strict requirements of Chapter Six on leadership and integrity in other Articles of the Constitution and prosecuting to stop them from seeking elective office, is more often than not, an exercise in futility.
The EACC, for instance, as the premier institution for implementation of Chapter Six – leadership, ethics and integrity standards for persons entrusted with public office – undertakes, among many other leadership and integrity tasks, vetting for both appointive and elective positions to ensure compliance with Chapter Six of the Constitution. For appointive positions, public officers are supposed to fill in self-declaration forms, often referred to as clearance forms, under the First Schedule of the Leadership and Integrity Act, where they answer questions on ethics and morality. Once the shortlisting is done, the hiring entities write to the EACC, which forwards the reports highlighting whether a shortlisted individual is under investigation, has been adversely mentioned, is in Court facing corruption or economic crimes cases, have been convicted.
This has worked well with appointive positions. The organisations take the vetting results seriously and never hire anyone whose integrity has been flagged by the vetting process.
“When the employers get information about the lack of integrity about these candidates, they take them very seriously. They know that if they appoint the person and they have been told that he had engaged in unethical conduct or corruption in another organisation, there’s nothing good they will expect,” said EACC’s director of Ethics and Leadership while discussing Integrity and Leadership on the ODPP’s Café, a breakfast show on YouTube.
The problem is with the elective positions where the law, even though still domiciled in the First Schedule of the Leadership and Integrity Act, shifts self-declaration to the Independent Electoral and Boundaries Commission (IEBC). The questions in the self-declaration forms for elective positions are, nonetheless, the same as those for appointive jobs.
However, the IBEC and the EACC have come up with a working synergy to ensure that individuals seeking public office through elections are thoroughly vetted on questions of integrity, especially on matters of ethics, corruption, and economic crimes. For example, in the 2017 General Election, the IEBC forwarded EACC for vetting names of 16,000 individuals whose political parties had cleared to vie after nominations. EACC flagged about 106 candidates with integrity issues. Some had ongoing court cases, while others had been adversely mentioned in active investigations. The IEBC, which has the express mandate to clear candidates to vie, nevertheless cleared about 104 of the 106 to contest in that General Election.
The IEBC’s mandate on clearing candidates is also curtailed by law. Articles 99 and 193 on qualifications and disqualifications on election to Parliament and the County Assembly, respectively, provide that an individual can only be disqualified if, as at the date of registration, they are serving a sentence of imprisonment of at least six months. That is not all; you must also have exhausted all the appeals processes to be barred from contesting an election.
Two residents of Mombasa County recently raised the hopes of revitalising Chapter Six from its deathbed when they petitioned a High Court in Mombasa seeking orders under a certificate of urgency to have Mike Sonko Mbuvi barred from contesting for Mombasa County Governor’s Office.
The two petitioners, Ndoro Kayuga and George Odhiambo, wanted the Court to, among other prayers, declare that Mike Sonko, having been impeached as Governor of Nairobi City County, disqualified from holding any other State office. The petitioners also wanted the Court to declare that a county governor who has been impeached or removed from office for violation of the Constitution or any other law is disqualified and ineligible to hold or be elected into any State office.
Article 75 (1) of the Constitution provides that a State officer shall behave in a manner that avoids demeaning the office the officer holds; 75 (2) (b) states that a person who demeans their office may be removed from office, and 75 (3), that should you be removed from office for demeaning your office, you stand disqualified from holding any other State office.
Mike Sonko, they’d argued, was removed from office by impeachment for violating and contravening, among others, Article 75 (1) (c) of the Constitution and that the impeachment was upheld by both the High Court and the Court of Appeal and is therefore disqualified from holding any other State Office. These were pertinent Constitutional issues that would have afforded the Courts a second bite at the cherry on the elusive constitutional interpretation of the equilibrium on leadership and integrity versus elective office.
Unfortunately, the petitioners have since changed tune and withdrawn their petition, alleging that Miko Sonko’s impeachment was political in the first place. Those whose candidature could have been affected by the petition might have compromised them. It remains to be seen if the EACC, which was highly interested in the petition, will subsequently take up the matter.
However, there’s still hope that the courts may soon be seized of this matter before August 9. A Constitution and Human Rights Division of the High Court sitting in Nairobi has also been approached by a group of Non-Governmental Organisations in a petition in the matter of Chapter Six on Leadership and Integrity and a host of other Articles in the Constitution.
Inuka Kenya ni Sisi, Wanjiru Gikonyo, the national coordinator of The Institute of Social Accountability (TISA), Kenya Human Rights Commission and Transparency International Kenya, say that the “Constitution has created an architecture that seeks to deal with the historical and Continuing culture of corruption and impunity concerning public funds….”
They argue that one of the criterion for qualification for elective and appointive office is the satisfaction of the provisions of Chapter Six of the Constitution on leadership and integrity. The petitioners are concerned that in the previous elections, some candidates who were seeking elective offices who were facing charges in Court or were under investigations on abuse of office, corruption or breach of public trust were cleared to vie for elective offices and that some will be cleared in the August 9 General Election, regardless. Unless the Court gives a clear interpretation of the applicability of Chapter Six, they argue, the Constitution will keep on being mutilated, especially in the coming General election.
They want, among other reliefs, a declaration that Chapter Six sets up a proper and objective test for both elective and appointive leadership and that the EACC has the primary and final mandate to vet and clear candidates for purposes of Chapter Six.
They also want a declaration that a person seeking elective office who has been charged in Court for abuse of office, corruption, breach of public trust or any serious offence, or one found by election court to have committed an election offence or adversely mentioned by a report of an investigative organ and recommended for prosecution is unfit to vie or hold elective office until such matter is completely exhausted.
These petitions bring to the fore pertinent constitutional issues that have perennially dogged threshold issues as far as Chapter Six is concerned, especially on the integrity question in elective public office. This has precipitated a constitutional puzzle that has rendered the EACC and the IEBC powerless in their mandates to vet and bar candidates with integrity issues from getting elected into public office and opened a floodgate for all manner of characters into public office.
Should the Court agree with the petitioners, it will be a big win for the anti-corruption war, particularly in the August 9 General Election that will see many candidates whose integrity is in question get barred from vying. It is the most desirable precedent that the emaciated Chapter Six of the Constitution needs today for its resuscitation. (