Police expel an aspirant out of a polling station for allegedly disrupting party primaries. PHOTO | NMG
By FRED OLUOCH
In Summary
Will Kenya block candidates with questionable character from contesting in the August elections in line with the Constitution?
Legal experts say this may not happen, because the relevant laws
are weak. Some cite 2013, when Kenyans went to the elections without
applying the law, after the anti-corruption watchdog failed to vet the
candidates because the relevant laws to operationalise Chapter 6 on
integrity had not been enacted, and the general indifference witnessed
during the recent party primaries, where integrity was not a factor.
The Leadership and Integrity Act, 2014, which operationalised
Chapter 6 of the 2010 Constitution, requires that “state officers
exhibit highest level of responsibility in the administration of public
affairs, tasking them to have conduct that his beyond reproach.”
Vetting those nominated
In trying to make integrity a factor in the August elections,
four Kenyan agencies in March constituted the Chapter Six Working Group
on Election Preparedness with the aim of vetting those nominated by
political parties once they have been gazetted by the Independent
Electoral and Boundaries Commission.
The agencies are the IEBC, the Ethics and Anti-Corruption
Commission (EACC), Office of Registrar of Political Parties (ORPP), the
Office of the Director of Public Prosecutions (ODPP), the Higher
Education Loans Board (HELB) and the Attorney-General’s Office.
The candidates are expected to be tested for vices and crimes
such as corruption, tax evasion, assault, fraud, falsification of
academic papers, loans default, misuse of firearms, hate speech and
incitement to violence, and previous convictions for major offences like
murder.
But Dr Carey Francis Onyango, chief executive officer at the
Centre for Multi-Party Democracy (CMD), says some of the laws have no
constitutional basis, citing the failure to clear with HELB.
“Of course, we are not supposed to elect people with integrity
issues. But the agencies must prove that they have gone to court and
have proof that, for instance, one has failed to pay tax or repay
loans,” he said.
Dr Onyango said that Chapter 6 is generally misinterpreted
because it is meant to regulate the conduct of public officers, who are
already in office, and those seeking political office.
He said that the only exception is where a candidate was removed
from office because of embezzlement of public funds as per Section 75
(3) of Chapter 6. This section says that, “A person who has been
dismissed or otherwise removed from office for a contravention of the
provisions specified in Clause 2 is disqualified from holding any other
state office.
The failure to apply Chapter 6 in 2013 has fed into the 2017
party primaries, where parties allowed all and sundry to contest without
considering their history.
For a candidate to have participated in the party primaries, he
or she had to be cleared by the EACC for having no pending corruption
case and had to present certificate of good conduct from the police.
In March, Education Cabinet Secretary Fred Matiang’i announced
that his ministry would form a committee to block candidates who had
failed to repay the loans they received during their university days, an
effort Dr Onyango says is likely to fail because they have no proof
that a person has no intention to pay.
Crimes against humanity
In February 2013, a five-judge bench dismissed a case filed
my members of the civil society to block President Uhuru Kenyatta and
his deputy William Ruto from contesting the elections because they were
facing crimes against humanity at the International Criminal Court. The
judges ruled that questioning the duo’s integrity required a proper
inquiry, which was not the mandate of the court — which relies on
evidence provided, and which could have been done by institutions such
as the IEBC and the EACC.
According to Daisy Amdany, executive director of the Community,
Advocacy and Awareness Trust, the current situation leaves only the
judiciary and the voters to block those with integrity issues from
ascending to political office. She said that it would be absurd for
Kenyans to start demanding integrity now, when they did not care about
it in the past.
“If you look at the nominations, they had no integrity at all.
Some of them were outright fraudulent and the parties accepted them. One
of the weak areas was parliament, which enacted laws to allow those
with ongoing court cases to contest until they are convicted,” she said.
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