MPs split on push to lock graft suspects out of elections

Experts say proposal likely to run into constitutionality hurdles

In Summary

• The proposed bill would be subject to prepublication scrutiny for further processing by the Justice and Legal Affairs Committee.

• Constitutional lawyer Bobby Mkangi said the proposal would be effective in an independent and just criminal justice system.

IEBC ballot boxes on display during a past by-election.
IEBC ballot boxes on display during a past by-election.
Image: FILE

Mixed reactions have greeted a bid to amend the law to bar graft suspects from being cleared to participate in elections once formally charged.

While some lawmakers and experts hold that it is the spirit of the Constitution, others held the view that the amendments proposed by Ugunja MP Opiyo Wandayi would be hard to implement.

Wandayi seeks to amend the Leadership and Integrity Act and the Elections Act to demand that graft suspects step aside and cease to perform the functions of their offices.

“A state officer who is formally charged in a court of law for an offence related to corruption shall cease to perform the functions of the office pending the finalisation of the court case,” the proposal reads.

Wandayi told journalists at Parliament buildings that National Assembly Speaker Justin Muturi has cleared the proposal to proceed to the Budget Committee.

From the Budget committee, given that it is not a money bill, it will be subjected to prepublication scrutiny for further processing by the Justice and Legal Affairs committee.

“We want to ensure that this Act gives effect to not only the letter of Chapter Six but also the spirit of the Constitution,” the Ugunja MP said.

In his address, the MP argued that it makes no sense of the court order barring suspects from accessing office when an affected governor can sit in his gazebo and chair a cabinet meeting.

The Public Accounts Committee chairman argued that persons charged with graft use their positions to entrench corruption, making it appear as part of the national culture.

“The best way to stop corruption in Kenya is to stop those suspected of stealing from the public. We need to remove them before they are elected if they contest a seat,” he said.

On the parlance that one is innocent until proved guilty, the ODM political affairs secretary said suspects should stay away until proved innocent then can claim for damages.

Ndaragwa MP Jeremiah Kioni backed the proposal, saying it mirrors the spirit of the Constitution. He said the courts have lowered the bar and allowed the theft of public resources.

“The drafters intended that when one is charged, they should be not allowed to run for office. That will be the ultimate killer of corruption. Kenya would see a major transformation overnight,” said Kioni, who is the Constitution Implementation Oversight Committee chairman.

However, there are signs the bill could sail in unchartered waters going by the sentiments from various experts and lawmakers.

Homa Bay Township MP Peter Kaluma argued that Article 50 of the constitution presumes all suspects innocent until proven guilty and convicted.

“The courts upheld this position when President Kenyatta and DP William Ruto were allowed to run for election in 2013. The proposal to bar suspects, whether of corruption or otherwise,  is, therefore, street talk without foundation in law,” Kaluma said.

Constitutional lawyer Bobby Mkangi said the proposal would be effective in an independent and just criminal justice system.

“The missing link is an objective, free and fair criminal justice system where everyone can be happy that satisfied that by the time one is taken to the dock, there is a good case that is not political,” he said.

The lawyer argued that it would take fixing the criminal justice system by, for instance, setting a definite time for cases to be heard to a conclusion.

But nominated MP David Sankok said the law may be subject to abuse by persons keen on locking out their rivals from contesting in any election.

“We will lock out everybody literally. It is a proposal that may not see the light of the day because of the complexities it is set to present,” he said.

He reasoned that it would be easy to apply the law once one is convicted by a competent court, adding that Kenyans should not accept jungle laws.

“We can reduce the timeline of all corruption cases just as we have done with petitions challenging a presidential election,” Sankok said.

But Wandayi argued it would be counterproductive to use a simplistic reading of Article 99 of the Constitution to oppose the law.

The PAC chair argued Article 259 of the supreme law says the same shall be interpreted in a manner that contributes to good governance.

“You don’t pick one section and read selectively,” he said.

He held that the spirit of the law provides that a person is eligible for election if the person among others satisfies education, moral, and ethical requirements.


Edited by Kiilu Damaris

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