Bombshell: Plan to lock out graft suspects from polls

Many pro-handshake MPs have mooted a plan to lock out graft suspects from clearance to run for election.

The lawmakers are pushing for amendments to the Leadership and Integrity Act to bar anyone facing serious crimes or crimes related to graft from contesting any seat in 2022.

The argument against this has always been that suspects are innocent until proven guilty in a court of law and exhaust all possible appeals. That's also in the law.

The plan was revealed in snippets of a letter to National Assembly Justin Muturi seen by the Star on Sunday.

In the fresh bid to tighten election qualifications, the lawmakers seek to amend the Leadership and Integrity Act, 2012 and the Elections Act, 2011.

They want the laws amended to suspended a state or public officer who has been formally charged with a corruption-related offence.

They also want officers facing “other serious crimes related to corruption” to step aside once charged.

“…and to bar persons who are facing corruption charges from being nominated as candidates for election positions,” the letter read.

The lawmakers want the speaker’s approval and facilitation to draft bill or bills to enforce the desired outcomes.

“We wish to request your approval and facilitation of your office to enable me come up with a bill or bills that meet the requirements of the Constitution, the Laws of Kenya and our Standing Orders,” the letter by one of the MPs leading the team said.

Should Muturi approve the request, the lawmakers want laws amended to close lacunae (gaps) in law that have barred anti-graft agencies from enforcing the integrity rules.

“We want to ensure that Chapter Six [on integrity] of the Constitution of Kenya 2010 is given proper effect,” another MP said.

Constitution Article 99 provides that a person is disqualified from being elected an MP if he or she could be subject to imprisonment for at least six months as at the date of registration as a candidate.

It also applies to a person found to have misused or abused a state office or public office or in any way violated Chapter Six of the Constitution.

However, the law contains a rider saying a person is not disqualified unless all possible appeals and reviews of a sentence or decision are exhausted.

The EACC and DPP have deplored these provisions as a stumbling block to their efforts to nail graft suspects.

Governors, MPs, and other politicians facing criminal charges arising from suspected theft of public resources, fraud and murder could thus be cleared by the IEBC to run in 2022.

EACC Chief Executive Office Twalib Mbarak once said the commission can only raise the red flag but the final call is made by the Independent Electoral and Boundaries Commission.

In a recent roundtable meeting with MPs at the Kenya Institute for Curriculum Development, the anti-graft agency bosses blamed the law for frustrating their efforts. 

Twalib said, “People keep asking us why we clear so and so. Our Constitution says you can only be barred from occupying a public office when all legal avenues have been exhausted.”

DPP Noordin Haji said there were challenges with those who successfully appeal the rulings against them.

“We have charged nine governors and they are still in office. They still access Ifmis and exploit those windows without any shame,” he said.

But should MPs succeed with their anti-graft amendments, former governors — impeached or facing graft charge  s— could kiss their political ambitions goodbye.

Governors Okoth Obado (Migori), Muthomi Njuki (Tharaka Nithi), Sospeter Ojaamong (Busia), Moses Lenolkulal (Samburu), and Ali Korane (Garissa) are facing charges in court. Hence, they presumably would not be eligible to contest in 2022 if laws are amended.

Former Nairobi Governor Evans Kidero is also facing graft charges in court and would thus be locked out of the Homa Bay governor election. He has declared interest in succeeding Governor Cyprian Awiti.

More than two dozen of MPs are also face charges including misuse of CDF cash, fraud, forgery, murder and incitement to violence – all considered breaches of the integrity laws.

The list include Mathira MP Rigathi Gachagua who is out on bail following a charge of conspiracy to defraud Nyeri county of Sh27 million.

The case followed shortly after he was charged with obtaining Sh7 billion suspected to be the proceeds of crime.

Lugari MP Ayub Savula is out on bail, after being charged with obtaining Sh122 million from the Government Advertising Agency.

Kibwezi West’s Patrick Musimba was charged with conspiracy to steal more than Sh1.1 billion from Chase Bank. 

In August 2018, Embakasi North MP James Gakuya was charged with the fraudulent acquisition of Sh39 million CDF monies.

In February 2018, Nandi Hills MP Alfred Keter was also charged with forgery of Sh633 million Treasury bills.

Lawyer Charles Kanjama on Sunday told the Star the law change would not be effective because the Constitution speaks to qualification for one to run for election.

“You cannot limit political rights that have been given by the Constitution unless you amend the Constitution itself," he said.

“If you use an Act of Parliament that is trying to amend the constitutional rights of people and limit them, then that provision is likely to be declared unconstitutional,” Kanjama said.

He told the Star the Constitution gives meaning to what constitutes integrity, as the word can mean different things.

“You cannot bar someone from elective office just by being charged unless they have been convicted and have exhausted the avenues of appeal. The COK has recognised the principle of the right to be presumed innocent until proven guilty,” the lawyer explained.

President Uhuru Kenyatta’s administration has equally attempted to tighten anti-corruption laws to make it mandatory for all state officers to step aside if charged.

The President has also been piling pressure on the Judiciary to ensure all graft cases are concluded within two years.

Bills and legislative proposals seeking to entrench tough anti-corruption rules have encountered obstacles in the House.

In the last attempt, the provisions were deleted from the Statutes Law (Miscellaneous Amendment), 2020, following disagreement among the responsible agencies.

The machinations slowed down the agencies' campaign led by the DPP who has been pushing for Parliament to expunge Section 62(6) of the Anti-Corruption and Economic Crimes Act, 2003.

The section protects elected leaders and independent officeholders such as commissioners from easily being forced out of office through graft prosecution.

Should that section of the law be expunged, governors and state officers facing graft charges would be suspended with half pay until the conclusion of their cases.

Justice Mumbi Ngugi, in her own opinion — known in law as obita dicta — said,  “Section 62(6) is contrary to the constitutional requirements of integrity in governance, are against the national values and principles of governance and principles of leadership and integrity in Chapter Six.”

Changes that have been floated included having the EACC scrutinise self-declaration forms of politicians running for office before they are allowed to run or be assigned state offices.

(Edited by V. Graham)