Chapter 6 needs bold interpretation by Supreme Court

First published Sunday Standard, April 23, 2017. Kindly reproduced here with permission from Standard Group

The need for a leadership based on integrity is turning out to be the elephant in the shamba in these General Elections. Recently, hundreds of aspirants have been publicly accused and some even sued by the public, politicians and election governance bodies as unfit for public office.

Party leaders have drawn the line for aspirants who do the leadership and integrity threshold including the minimum educational qualifications, are indebted or bankrupt.  The Senate Public Accounts Investment Committee has called for six Governors to be barred from running again. Not to be left behind, Civic organizations and citizens have called on eight Governors, a hundred or so MCAs and former Cabinet Secretaries in court on procurement related fraud cases to be stopped from running. Social media has delighted in flashing school grades, university certificates and at some bizarre moment, even a birth certificate. In Chapter six, aspirants have found a new club to strike the incumbents.

Given the staggering levels of corruption, abuse of public office and conflict of interest this is comforting on one level. On the other, it has a created a cacophony of accusations and counter-accusations that one would expect in a rowdy boxing match.

Despite the clarity of Chapter Six, the Leadership and Integrity Act, Political Parties Act and its Elections Code of Conduct, the legal standards remain muddied by contradictory judgments in at least seven legal cases.  Just before the last General Elections, President Kenyatta and Deputy President Ruto were cleared to run for office on grounds that they were presumed innocent until the International Criminal Court found them guilty.

In other cases, courts have either ruled that voters should be left to exercise their judgement or the Court of Appeal has no jurisdiction. In others, the court has ruled that the disbarring of a Public Official by their professional association is sufficient to disqualify them from office.

Attempts to have John Ndirangu declared unfit to be a Member of Parliament due to a prior criminal conviction in 2004 were declined by the court on a technicality. Ferdinand Watitu was not so lucky, the court quashed his appointment to the Athi Water Board based on his lack of suitability for the position. If Jubilee clears him, he is now seeking an elective position as the future Kiambu Governor.

The inconsistencies of these court cases and the velocity of claims require clear determination by the highest court of the land. If this does not happen, we may lose this moment to give teeth and enforcement to the Constitution. It is for this reason, that the decision by the Kenyan National Commission on Human Rights to seek an Advisory Opinion from the Supreme Court is to be lauded. The petition seeks an authoritative legal opinion on the fit and proper test for leadership including elective and appointive office.  It would provide guidance to both the judiciary and vetting institutions on how to ensure that all persons seeking elective/appointive offices are suitable to govern or manage public offices.

The average voter is slowly wakening up to the need to monitor the wealth and lifestyle of leaders and aspirants. However, we have no means of collecting the information we need. Institutions such as EACC and IEBC would do well to make this information accessible to citizens as required by the Constitution as this will empower citizens to make informed choices.

While the criteria of leadership and integrity is framing the 2017 General Elections, it remains to be seen whether the winners will reflect the best leaders Kenya has. What the Supreme Court can now offer us is a formula to breathe life into Chapter Six, reject those that cannot be trusted with public office and prepare us for the leaders we so desperately need.

For more on this issue see Mzalendo Trust blog

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