- The EACC boss says the problem started with Chapter Six of the Bomas draft of the new Constitution being watered down by MPs.
- Say loopholes prevent them from successfully barring politicians with integrity issues from vying for public office.
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Director of Public Prosecutions Noordin Haji and EACC boss Twalib Mbarak have expressed frustrations over loopholes in election laws.
They said the loopholes prevent them from successfully barring politicians with integrity issues from vying for public office.
The duo spoke on Tuesday during the fourth International Association of Prosecutors and the East Africa Association of Prosecutors Conference in Mombasa.
Mbarak said morally, such politicians should not be allowed to vie.
He, however, regretted that legally, that is not necessarily the case.
“If you want to employ somebody at a bank or a hotel and you are told that person was fired from where they were, will you ask why they have not been jailed and refuse to employ them?” Mbarak asked.
The anti-graft boss said at the EACC, their role is only to advise the electoral commission of the unsuitability of a person to hold public office.
“In many cases, the IEBC will tell you the law has weaknesses,” Mbarak said.
The EACC boss said the problem started with Chapter Six of the Bomas draft of the new constitution, being watered down by MPs.
“That chapter was very good. It addressed integrity issues in detail by the drafters but when it reached the politicians, they altered it," he said.
Quoting Italian historian and philosopher Niccolo Machiavelli, Mbarak said “Politics have got no morals.”
“They saw there were clauses that we need, mostly today and removed them. They feared those clauses would hurt them in future,” he said.
As a result, he noted, there are politicians who hold very big public offices in government but have fake academic papers, including KCSE certificates.
“And we know them as the EACC, but the case is in court. What would we do? If we tell them not to allow them to vie, they tell us of Article 99 of the Constitution that says any Kenyan is innocent until proven guilty by the courts,” Mbarak said.
He said this makes it hard for them.
The EACC boss said there are many people seeking different positions, including governorship, but they do not deserve to be allowed to vie.
He said they use the loopholes in law to get their way.
Mbarak said they have information about Form 2 dropouts, who suddenly have degrees and want to vie for positions as big as governorship.
“There are people who have even escaped prison and there are records to show that, who want public offices. But you still want to elect them. What do you want us to do? Should we go look for them and take them back to jail?” he said.
Mbarak said the solution lies with the voters. “If you know this person is a crook, why do you elect them? Simply do not elect them.”
Asked about former Nairobi governor Mike Sonko’s case, Haji said “that will be a matter for the courts to solve. But as you know, he has several cases in court.”
He was, however, quick to add that he was not targeting Sonko when he said leaders who have been impeached should not be allowed to vie for any position.
“It is not right that you are impeached for doing certain wrongs in Nairobi and now you are looking for another office in another county,” Haji said.
He said that is akin to playing games with the law.
“It is not only Sonko who has been impeached. There are about three governors who have been impeached. And when I said that, I did not target Sonko only, but all those impeached,” the DPP said.
Sonko, former Kiambu governor Ferdinand Waititu, Kericho governor Paul Chepkwony, Kirinyaga's Anne Waiguru. Embu's Martin Wambora and Mohammed Abdi of Wajir were all impeached by their respective county assemblies. Other than Sonko and Waititu, the rest were saved by the Senate and the courts.
Wambora was the first governor to be impeached but this was overturned by the Court of Appeal, which nullified the Senate’s decision.
Wambora vied and retained his seat in 2017 and is now finishing his second and final term
Haji said Kenyans must obey the law, adding that Parliament has the same powers as the High Court.
“So, it cannot be that an impeachment is done for show. No! It must have certain consequences and certain results.
“We said we are prioritising election offences and offences related to election that will either lead to violence or corruption itself,” he said.
Haji said the ODPP is giving prominence in terms of resources, expertise and abilities to the election, so as to ensure violence and abuse of processes are not experienced.
“We will try our best to ensure we have a free and fair election. When we say prioritising we mean giving more attention.
“For example, for a long time corruption has been our priority. So probably corruption now will become number two for a short while as we pay attention to election. Remember election offences also include issues of corruption,” he said.
(Edited by Bilha Makokha)