Should leaders who abuse their offices be eligible for election?

In Summary

•EACC is enforcing the Constitution the way We The People intended!

• No exception in the Constitution to protect corrupt leaders can possibly override this clear instruction by We, The People!

A file photo of EACC headquarters in Nairobi.
A file photo of EACC headquarters in Nairobi.

On 29th of December, the Ethics and Anti-Corruption Commission (EACC) issued a statement on “Integrity Compliance Under Chapter Six of the Constitution By Persons Seeking Election Into Public Office.” Part of their statement read as follows:

“EACC considers that a person is disqualified pursuant to Chapter Six of the Constitution, if the person has been dismissed or otherwise removed from office for contravention of Chapter 6 of the Constitution or its enabling legislation, in accordance with Article 75(3) of the Constitution”

This statement has elicited sharp criticism from a section of leaders, with some going as far as stating that this could not have possibly been the intention of the Constitution. One Senator opines that:

“It was never intended that a conviction or impeachment under our Constitution should condemn anyone to eternal political purgatory. Any other interpretation is incongruous and absurd”.

Since the said Senator is by his own admission a distinguished law lecturer, it would be presumptuous of us to argue with him on his understanding of the law without educating ourselves further. So I went back to the beginning of our Constitution-making process to understand what We, The People really intended. In my consideration, that beginning would be the Final Report of the Constitution of Kenya Review Commission (CKRC) which culminated in what came to be known as the Bomas Draft – the primary building block for our current Constitution.

On page 36 of the report, it is stated that, “The present Constitution encourages personalization of power, which is the very opposite of constitutionalism. The lack of any functioning accountability mechanism encourages growth of corruption and abuse of public resources.”This is one of the problems We, The People wanted addressed.

In Chapter 4 on objects and goal of review, the report enumerates under “Democracy, Good Governance and the Rule of Law” that:

“The new Constitution must establish a democratic system of government, and the Act identifies some methods for achieving this goal... First, there must be good governance, which means that the process of government must be transparent; public authorities must be accountable to the people; the administration must be fair; public officers, including ministers, must be free from corruption or other forms of abuse of power;(Page 45, emphasis mine)

On independent commissions, the report states that, “Commissions should ensure accountability by ministers and public officials, too, by enforcing codes of ethics and other anti-corruption laws” (Page 49).

CKRC enumerated 14 main points from the people on what they wanted the Constitution to contain. These are contained in 6.2 of the report. On leadership, the people said that

We want to be able to choose leaders with intelligence, integrity and sensitivity to make them worthy of leading…and…We want an end to corruption;”

We, The People had very clear expectations on the outcome of the review. In particular, we said that “all offices in the public and private sector should be required by law to be accountable for their reputation…and those put in office should not have been convicted of serious felonies in the past (Page 223)

On the anticipated Ethics and Integrity Commission, We, The People recommended some of its functions to include: “investigate whether persons who have availed themselves for appointment as public officers or who avail themselves or are prepared to stand for public elections for offices are free of corruption and therefore fit and proper persons for those offices and disqualify on investigation as in the paragraph above those who are found not suitable for public office in terms of the Code or in terms of the law.

These recommendations are appropriately and exhaustively covered in Chapter Six of the Constitution. Specifically, the wishes of Kenyans on who leads us are codified in Article 75 of the Constitution on conduct of State Officers thus:

  1. (1) A State officer shall behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids—

(a) any conflict between personal interests and public or official duties;

(b) compromising any public or official interest in favour of a personal interest; or

(c) demeaning the office the officer holds.

It goes ahead to state categorically that “a person who has been dismissed or otherwise removed from office for a contravention of the provisions specified in clause (2) is disqualified from holding any other State office.”

This proviso of the Constitution in very much in tandem with the expectation of Kenyans as expressed by the drafters of our Constitution in the CKRC Report. Kenyans were very clear that we need leaders who are free from corruption and other abuses of office and more importantly that, “We want to be able to choose leaders with intelligence, integrity and sensitivity to make them worthy of leading;”

Since the people may not have knowledge or time to ensure the choices they have meet these requirements, we mandated EACC to conduct integrity vetting on our behalf by recommending that their function must include to “investigate whether persons who have availed themselves for appointment as public officers or who avail themselves or are prepared to stand for public elections for offices are free of corruption and therefore fit and proper persons for those offices” and to “disqualify…those who are found not suitable for public office.”

So YES, We The People intended that anyone removed from office for contravening Chapter Six of the Constitution, whether through impeachment or conviction by a court of law, should neither be eligible for appointment to public office nor be eligible to offer themselves for election to a state office! No other wish was clearer! And the people did not give room for reformation – appropriately so in a country where some of the most corrupt individuals even have worship rooms in their houses!

EACC is enforcing the Constitution the way We The People intended! No exception in the Constitution to protect corrupt leaders can possibly override this clear instruction by We, The People!