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How Supreme Court denied Kenyans a hand in quest to tame graft

In Summary

• As the country marks the first 10 years of implementing Chapter 6 of the Constitution in August 2020, a pertinent question arises.

•Have the spirit and objectives of Chapter 6 been realised or not? 

Supreme court of Kenya.
Supreme court of Kenya.
Image: FILE

It is trite that public leaders, like Ceaser’s’ wife, should be beyond reproach. Perhaps this is the understanding upon which on 27th August 2010, Kenyans promulgated and gave unto themselves and their future generations a new Constitution, which significantly altered governance structures and ushered in far-reaching reforms.

Among the aura of the transformative provisions is Chapter 6 of the Constitution on leadership and integrity, an innovation not only unique to Kenya but the entire Africa. Indeed, Kenya’s Constitution continues to be lauded, and rightly so, as one of the most transformative and progressive Constitutions in the world. If effectively implemented, its letter and spirit could significantly address most of our national challenges and transform the Country as envisaged under Vision 2030 and other development blueprints.

Chapter 6 sought to address the accountability paradox in public service by prescribing high standards of integrity for holders of public office, christened as “state officers” and “public officers”. The Chapter emphasized three things first; a clarion call that public office is a position of public trust, secondly, honesty, accountability and transparency for all holders of public office in their private and public dealings, and thirdly, a requirement for all public office holders to embrace the spirit and practice of servant leadership and self-sacrifice (altruism) to the nation. There values were for a long time missing or not observed in Kenya’s public service.

Upon enactment of the Constitution, 2010, the journey towards a transformed Kenya took off in earnest. There appeared to be a general consensus that the painful history and context upon which the new Constitution was predicated necessitated a paradigm shift on governance in order to build a more democratic and accountable state.

Among other provisions, Chapter 6 set personal integrity as the yardstick for selection of persons for state office either through appointment or election. For serving state officers, violation of the Chapter was prescribed as one of the grounds for removal from office. These provisions are buttressed in Article 1 of the Constitution which decrees that all sovereign power belongs to the people thereby reinforcing the “public trust doctrine” that all persons holding public office do so on behalf of the over 47 million Kenyans. As such, holders of public office should at all times be servants and stewards, accountable to the citizens.  Without doubt therefore, Chapter 6 remains Kenya’s nerve centre for the Constitutional transformation envisaged in all the spheres of governance.

In promulgating the Constitution 2010, Kenyans were clear on what had ailed them and what they wanted or aspired for as a nation. Certainly, they must have wanted to reverse the governance shortcomings that had bedevilled the nation for decades. It is also true that Kenyans desired to keep merchants of impunity and architects of corruption far away from both appointive and elective office. Kenyans wanted to bring to a halt to any form of plundering of public resources. This is why the country required leaders of integrity to manage public affairs, resources and the public purse.

As the country marks the first 10 years of implementing Chapter 6 of the Constitution in August 2020, a pertinent question arises. Have the spirit and objectives of Chapter 6 been realised or not? Kenyans are better judges on this question. However, a quick analysis of the implementation status, 10 years down the line, points to serious deficits on leadership and integrity and a lot still needs to be done to realize the aspirations of Kenyans with regard to Chapter 6 of the Constitution. Governance malpractices, low levels of accountability, corruption and impunity still abound.

The question as to how Kenyans, stakeholders and other oversight institutions have promoted or implemented Chapter 6 of the Constitution, to date, is critical. The sovereign power belongs to the people of Kenya and one of the ways to operationalize it is through the ballot. It cannot be denied that in the 2013 and 2017 general elections, citizens did not critically assess and conduct social accountability or vetting to ensure that only leaders with the highest level of integrity accessed public office. Although it can be safely argued that citizens were not sufficiently empowered to discharge this cardinal responsibility, much more diligence was required of them when electing persons to office. A general election is one critical tool that avails to citizens to execute their duty under Article 3(1) of the Constitution which enjoins everyone to respect, uphold and defend the Constitution.

On the other hand, the civil society and the media have been key actors in the social accountability discourse. However, their reach and impact is also limited. Various oversight institutions have made notable effort to enforce Chapter 6 of the Constitution. However, those efforts have not borne much fruit due to major gaps in the legal framework for operationalization of Chapter 6.

The above state of affairs left the country with the Judiciary, which by virtue of its constitutional power and mandate could effectively determine the course that Chapter 6 would take. I pause here and note that enactment of a Constitution does not stop at promulgation. It continues through purposive interpretation guided by a country’s changing needs and historical experiences, and Courts have inherent powers in this regard.

An array of hope was realized when the High Court, in Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR (Mumo Matemu case), reaffirmed the aspirations of Kenyans regarding Chapter 6 of the Constitution in the following powerful words: “The People of Kenya did not intend that Chapter 6 provisions be merely suggestions, ornamental or lofty aspirations. Kenyans intended that the provisions should have substantive bite”. This ruling provided a benchmark for assessment of Chapter 6 of the Constitution. Although the High Court decision was later vacated by the Court of Appeal, the spirit and principles on Chapter 6 of the Constitution remained and thrived.

Subsequent decisions of the High court have recognised the need to implement and observe Chapter 6 of the Constitution. However, the decisions made so far have been contradictory, inconsistent, and incoherent and do not offer any clear or conclusive determination of the proper test for integrity under Chapter 6.

It is in light of the cited inconsistencies that, in the run up to the 2017 general election, the Kenya National Commission on Human Rights (KNCHR) moved the Supreme Court seeking an advisory opinion on the correct interpretation of Chapter 6 including the proper test and threshold of the integrity required for election or appointment to public office. The thrust of the case by KNCHR was that the Court of Appeal, High Court and various enforcement agencies have interpreted Chapter 6 in a restrictive, conflicting, inconsistent and incoherent manner. This, according to KNCHR, and I agree, resulted in a confused jurisprudence and rendered Chapter 6 ineffective and toothless. There was thus need for guidance by the apex Court.

 

Given the great national importance and overwhelming public interest in the matter, the Ethics and Anti-Corruption Commission (EACC), Director of Public Prosecutions (DPP) and the Independent Electoral and Boundaries Commission (IEBC), which have enforcement responsibilities were enjoined as interested parties. They together with KNCHR and the Attorney General, the respondent in the case, urged the court to pronounce itself on how Chapter 6 should be applied. Among the issues they wanted the Court to determine was whether a person can be appointed to public office if they were facing corruption investigations or prosecution, or have been found responsible for loss of public funds by reports of the Auditor General and oversight bodies. Others were the role of IEBC in clearing political aspirants for compliance with Chapter 6 and what the proper test should be.

 Before the matter was heard, Mr. Okiya Omtata, an interested party, raised a preliminary objection contenting that the Supreme Court had no jurisdiction to render the sought advisory opinion because there were two petitions pending before the High Court touching on related issues. The interested party argued that the Supreme Court could only entertain a final appeal ensuing from litigation in the lower Courts, if at all such an appeal was to come before them.

On 7th February 2020, the Supreme Court in a majority decision of 5-2 rendered its ruling allowing the preliminary objection effectively declining to hear the matter citing lack of jurisdiction. The majority bench cited the two petitions which have been pending in the High Court since 2017. One of them had challenged the constitutionality of requiring political aspirants to submit clearances from various agencies to facilitate integrity vetting under Chapter 6. The second one challenged the constitutionality of the team dubbed “Chapter Six Working Group” which had been established by the Attorney General in the run up to the 2017 general election to coordinate vetting for Chapter 6 compliance by persons seeking elective office.

 

In the Supreme Court ruling, two Judges however dissented and argued that the Supreme Court indeed had jurisdiction and that it was important for the Court to provide guidance on how Chapter Six should be applied. In his dissenting opinion, Justice Isaac Lenaola rendered himself thus: “I therefore find, without hesitation, that time is ripe for consideration and direction by the Supreme Court on the applicable criteria under Chapter 6 of the Constitution… An invitation for this Court to down its tools for lack of jurisdiction should not to be permitted, as such an action would occasion an injustice to the wider public interest.”

Lenaola SCJ further observed: “Lastly, although the Applicant has raised 14 questions on which the Court’s Advisory Opinion is sought ….the Court can, within its discretion, limit those questions and indeed leave to the High Court certain litigational issues….. without throwing out the baby with the bath water.  One of the issues that I would have expected this Court to render an advisory opinion on, is this: whether Chapter Six of the Constitution sets up a fit and proper test for leadership including elective and appointive offices; and if so, what is that test?” Justice Mohammed Ibrahim adopted this dissenting opinion entirely.

The dissenting voices are a clear indication of what Kenyans yearn for and affirmation of a good opportunity that arose to resolve the jurisprudential confusion that has impeded effective enforcement of Chapter 6 since 2010. It was however lost to the majority. As it is said, the majority have their way but the minority too have their say.

The Supreme Court could have provided guidance on application of Chapter 6 to all persons seeking appointment and election to public office. A clear framework would have also ensured that those who may find their way to public office despite integrity deficits are subsequently removed. That way, the Supreme Court being the final arbiter in the country would have helped the country resolve the legal quagmire to promote effective implementation of Chapter 6 of the Constitution.

Some of the questions ensuing from the Supreme Court ruling include the following: First, did the Supreme Court appreciate Article 10 of the Constitution which commands all state organs, state officers, public officers and all persons to be guided by the listed values and principles, including the need to promote good governance? Second, did the Supreme Court caution itself of the possibility that conclusion of the two petitions pending before the High Court could as well add to the existing jurisprudential confusion on Chapter 6 rather than resolving it? Third, did the Supreme Court recognize the urgency with which the issues impeding effectiveness of Chapter 6 need to be resolved? And fourth, why didn’t the Majority Justices consider the centrality of Chapter 6 in governance and the overwhelming public interest in its effective implementation as sufficient grounds warranting exercise of their jurisdiction?

Whichever way one looks at it, it is irresistible to opine that in this case, the Supreme Court’s act of deference, with tremendous respect, denied Kenyans a hand in the quest to hold political leaders accountable. To a considerable extent, the Supreme Court ruling slowed down the nation’s efforts and aspiration towards taming corruption through effective integrity vetting of those seeking appointment or election to public office.

In declining to hear the matter, the Supreme Court failed to rise to the occasion at a critical time of a national need. It was incumbent upon the Court to give direction, guidance and breathe life to Chapter 6 of the Constitution, as pleaded by, literally, all state agencies involved in the implementation process.

Nevertheless, all is not lost. The citizenry, media, civil society organizations and oversight institutions have to continue with their burning desire and clamour to ensure that only leaders of integrity are entrusted with the management of public affairs through litigation, social accountability, social vetting and legislative interventions among other efforts. The prosperity that Kenyans aspired for when they enacted the Constitution, 2010 should never be lost. Meanwhile, the Supreme Court let Kenyans down at a critical hour of need.

 

The writer is a Governance Expert. Email: [email protected]