You won't direct us on our mandate - IEBC tells off EACC

The anti-graft body and the electoral body on Thursday differed on whether those seeking to vie for elective posts but have active cases in court should be allowed to contest in the upcoming August General elections.

The Independent Electoral and Boundaries Commission (IEBC) was categorical that candidates who fall in that category are still presumed innocent until proven guilty.

It told the High court that it upholds the rule of presumption of innocence until proven guilty and affected aspirants should be allowed to contest.

“We will not apply the constitution in a manner that curtails the requirements of a fair trial. We are an independent institution. We are not subject to direction or control by any person or authority,” said the IEBC.

The Ethics and Anti-corruption Commission (EACC) recently flagged off 241 candidates seeking to run for office over integrity issues.  

It listed Mike Sonko, Ann Waiguru, Muthomi Njuki, and Evans Kidero among others.

From the list, 55 aspirants are currently being prosecuted in court over economic crimes, abuse of office, and other crimes.  The list was received by the IEBC.

But the commission on Thursday told the High court that the EACC cannot direct it on how to conduct its mandate.

“We are not a conveyor belt to receive any information and do as recommended,” it said.

The EACC on the other hand said such aspirants and those with fake academic certificates should be barred.

The commission's Deputy Director Philip Kagucia also listed candidates who have been convicted and appealed the decisions, those whose investigations are ongoing, and the ones who have just received complaints with respect to their integrity.

Kagucia said Kenyans have a right to be protected from bad leadership.

The two independent bodies were responding to a case filed by Activist Okiya Omtatah and other 16 petitioners who are seeking to bar candidates with integrity questions barred from vying in the August 9 polls.

On matters of impeachment, IEBC and EACC agreed that such candidates cannot vie.

They cited the case of Mike Sonko and that of Karugo Thang’wa saying they are not eligible to vie or hold public office.

IEBC Lawyer Edwin Mukele however told Justices David Majanja, Chacha Mwita, and Mugure Thande that it has no jurisdiction to deal with issues around acceptance of Sonko’s candidature.

That power is said to solely lie with the commission’s disputes committee.

He also asked the court to restrain itself from issuing a blanket order that all Governors who have been impeached should be barred.

Such a blanket order he said would be usurping the powers of the commission.

“Every person should be assessed on their own merit,” he said

In a brief Rejoinder, Sonko through Lawyer John Khaminwa said the presumption of innocence continues until one has exhausted the judicial processes in the country.

The Director of Public Prosecutions on the other hand said that even if a party has appealed against a conviction or impeachment, there is no rider in the law to suggest that the appeal has to be considered.

“The constitution is silent. It was not by accident. Once a conviction has been rendered, it matters not that you have preferred an appeal. You still fail the eligibility test,” said Alexander Muteti for the DPP.

“Because how do you persuade a common man that a person who has been convicted can assume office? Those people are not a judge of fact and law. We must protect them from persons whose moral issues are in question,” he added.

In 2021, the High court upheld the decision by both the Nairobi County Assembly and Senate to impeach Sonko.

Sonko appealed to the Court of appeal and failed.

He then filed a notice of appeal at the Supreme Court but parties in Thursday’s case said there was nothing to show he appealed or got a stay of his impeachment.