ACCOUNTABILITY

Courts should unlock integrity threshold before 2022 polls

Chapter 6 is a unique innovation aimed at insulating public trust from abuse.

In Summary

• In enacting Chapter 6, Kenyans hoped to reverse the culture of corruption and impunity, clean up their politics and see to it that only men and women who meet the integrity threshold occupy public office.

• Today, concerns have gained considerable momentum on whether the integrity threshold envisaged under Chapter 6 has been met, especially, in the election of persons to public office. 

In enacting Chapter 6, Kenyans hoped to reverse the culture of corruption and impunity, clean up their politics and see to it that only men and women who meet the integrity threshold occupy public office.
In enacting Chapter 6, Kenyans hoped to reverse the culture of corruption and impunity, clean up their politics and see to it that only men and women who meet the integrity threshold occupy public office.
Image: FILE

Kenya’s Constitution 2010 has been termed as a progressive and transformative instrument that, if effectively implemented, could significantly address most national challenges.

Its enactment signified a major break from the past.

The Constitution overhauled governance structures and redefined the relationship between citizens and their Government.

Unlike the retired Constitution, the 2010 Constitution embodies far-reaching reforms aimed at creating a more democratic and accountable state.

Among them is Chapter 6 which prescribes leadership, ethics and integrity standards for persons entrusted with public office.

Chapter 6 is a unique innovation aimed at insulating public trust from abuse.

To many, the search for a new constitutional order was predicated upon the need to address public accountability deficits hitherto manifested through wanton plunder of public resources and other forms of poor governance.

In enacting Chapter 6, Kenyans hoped to reverse the culture of corruption and impunity, clean up their politics and see to it that only men and women who meet the integrity threshold occupy public office.

Today, concerns have gained considerable momentum on whether the integrity threshold envisaged under Chapter 6 has been met, especially, in the election of persons to public office.

Although major milestones have been recorded, much more remains to be done.

Notably, individuals facing corruption charges and other integrity issues continue to be cleared by IEBC to seek elective office.

For instance, during the commemoration of the 10th anniversary of implementing Chapter 6 held on 27th August 2010, the IEBC Chairperson stated that in the 2017 general election, IEBC received from EACC a list of 106 persons with outstanding integrity issues to be barred from seeking election.

However, IEBC did not bar them due to the absence of a clear guiding framework arising from gaps in the law.

Similarly, in early 2021, IEBC cleared an aspirant with active corruption charges to seek election to state office.

The paradox is that a person who was compelled to vacate public office, on account of corruption, found his way to even a higher state office.

Ironically, citizens have over the years demonstrated a tendency not to care much about a candidate’s integrity status.

Indeed, citizens have, times without number, elected and even re-elected to office persons whose integrity has been questioned.

As the holders of sovereign power, citizens are expected to always elect leaders with integrity taking into account that it is them who ultimately bear the consequences of poor governance.

It must however be pointed out that where IEBC clears persons with integrity deficits to contest for elective office, citizens remain vulnerable to unethical leadership.

This is because the citizens are compelled to elect leaders from the poor alternative choices presented to them.

This is where courts come in to help IEBC discharge its mandate in a manner that is consistent with constitutional values and principles relating to public leadership.

This article attempts to answer the question of what exactly ails the effective implementation of Chapter 6 in the search for electoral integrity.

To my mind, the main obstacle is what one may call a constitutional misnomer found in Articles 99(3) and 193(3) of the Constitution.

Nevertheless, this is a gap that could be easily cured through judicial interpretation of the Constitution, or review of the relevant integrity statutes.

However, that has not happened even as the country gears up for the next general elections in 2022.

The substratum of the challenge is that under Articles 99(2)(h) and 193(2)(g) of the Constitution, a person is disqualified from being elected if they have been “found, in accordance with any law, to have misused or abused a state office or public office or in any way to have contravened Chapter 6.”

Such finding may be by any relevant body vested with a responsibility to apply the Constitution and the law.

However, the rationale of the provisions under Article 99(2)(h) and 193(2)(g) is effectively reversed by Article 99(3) and 193(3), which provide that a person cannot be disqualified unless all possibility of appeal or review of the relevant sentence or decision has been exhausted.

Notably, the provisions requiring exhaustion of appeals, if read in isolation and without reference to other relevant provisions such as Article 10 and Chapter 6, make it almost impossible to ever bar anyone from seeking election.

This is because the period taken before one can exhaust all appellate stages, in effect, allows the elected person to serve for over 2 terms of 5 years each.

Courts have been confronted with matters requiring them to declare the integrity threshold for public office.

However, an analysis of the judicial determinations made so far reveals that Chapter 6 has been interpreted in a restrictive, conflicting, inconsistent and incoherent manner culminating in jurisprudential confusion on what the integrity test is.

Evidently, various decisions made in the matters determined subsequent to Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR have not provided any clear or conclusive determination of the important question of the integrity threshold under Chapter 6.

The other challenge attributable to the Courts is the pattern of judicial deference on matters Chapter 6 whose climax is evident in the Supreme Court ruling in Kenya National Commission on Human Rights V. Attorney General; Independent Electoral and Boundaries Commission and 16 others (Interested Parties) [2020] eKLR.

In this case, the Supreme Court declined to hear an application for an advisory opinion on the true test of integrity under Chapter, with the majority bench citing lack of jurisdiction.

This denied Kenyans a much-needed hand in the quest to unlock Chapter 6.

The decision has been faulted for not taking into account the great national importance and public interest in the effective implementation of Chapter 6.

Remarkably, a judicial attempt to breathe life to Chapter 6 was made in Moses Kasaine Lenolkulal v. Director of Public Prosecutions [2019] eKLR.

In a purposive interpretation of Chapter 6, Mumbi J, as she then was, held that it would be against the spirit of Chapter 6 for Governors charged with corruption to return to the office and continue presiding over management of the very public resources they are accused of embezzling.

As noted by the Judge, such a state of affairs cannot be in consonance with what Kenyans intended in enacting Chapter 6.

Evidently, applying the reasoning of Mumbi J in the Kasaine case, it is not difficult to infer that the impugned conduct of a person does not necessarily have to amount to criminality for them to be termed as non-compliant to Chapter 6 and effectively barred from seeking election to public office.  

However, such a school of thought requires judicial or quasi-judicial recognition. Indeed, a finding that Chapter 6 contains an ethical threshold, despite Article 99(3) and 193(3), requires a purposive interpretation of the Constitution, as a whole, as opposed to reading Article 99(3) and 193(3) in isolation.

They should be read together with the values and principles under Article 10 and Chapter 6.

Significantly, Courts are enjoined under Article 259 of the Constitution to interpret the Constitution in a manner that promotes its purposes, values and principles, permits the development of the law and contributes to good governance.

Whenever moved, courts should rise to the occasion, desist from deference and provide guidance on how Chapter 6 should be applied.  

Undoubtedly, judicial courage and collective action of citizens, civil society and media, could unlock the integrity threshold under Chapter 6 as a pathway to taming corruption in our motherland.     

If done before 2022, it will ensure that only men and women of unquestionable integrity are elected into public office.

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