• The High Court has in two judgments affirmed that the IEBC is mandated to determine the suitability, competence and personal integrity of candidates.
• Rapid criminalisation of politics cannot be arrested by merely disqualifying tainted legislators but should begin by “cleansing” parties.
High Court judge Mumbi Ngugi’s ruling declaring Section 62(6) of the Anti-Corruption and Economic Crimes Act unconstitutional does not only affect some state officers. It is inclusive of appointive and elective offices.
This ruling dealt a mortal blow to state officers who have been using it to hang onto office even after being charged for criminal or corruption cases. This Section was thus entrenching corruption and impunity in the country, especially among elected officeholders.
Justice Ngugi’s ruling GAVE back life Chapter Six of the Constitution as many MPs have been accused and or linked to corruption but have been walking scot-free.
The drafters of 2010 Constitution were well informed of the poor governance Kenya had suffered for years. They envisaged that there would be a time when lawbreakers would become lawmakers and or govern. This is because the most important criterion for political parties when they select candidates is the ‘ability to win’, not really their ethics or morals. Consequently, criminals have captured various state institutions.
While the Constitution does not bar anyone from running for office, it, however, sets out clear suitability criteria for the candidates. Contrary to public perception, the judgment on the Integrity Case of 20102 filed by the International Center for Policy and Conflict did not allow people with unresolved integrity and unethical questions to vie. Judges hid behind the claim that the case touched on the presidential election and that the petitioners should have first written to the IEBC over the candidates’ integrity.
The High Court has in two judgments affirmed that the IEBC is mandated to determine the suitability, competence and personal integrity of candidates. In Petition 549 of 2012, the court held: “If there is any issue of qualification as to whether someone … is qualified to be a person to contest or vie for a parliamentary seat, it is not a matter for determination by the High Court in terms of Article 88(4) (e). It is a matter to be determined according to the procedures and mechanisms as provided by law applicable to the electoral process under the provisions of the IEBC Act, 2010, the Elections Act, 2011 and where applicable the Political Parties Act, 2011”.
The Nancy Baraza-led Judicial Tribunal addressed and resolved Chapter Six application on integrity. Issues of criminal records are only a part of a core set of integrity parameters, which were well developed by the tribunal.
The tribunal said, “We have spread our net wide and made reference to Chapter Four on the Bills of Rights, Article 10, Article 28 and Article 73”. The tribunal made a distinction between the presumption of innocence (until proven guilty), as articulated in the administration of criminal justice, and integrity standards expected of public/state officers. The latter is “neither that of criminal law, that is beyond reasonable doubt nor that in civil cases, which is on a balance of probability”, the tribunal asserted.
The tribunal stated that unethical conduct or lack of integrity by state officers only required accurate proof and material facts. The innocence of a suspect until proven guilty is within the purview of administration of criminal justice system but cannot withstand or hinder the well-defined and national principles and values of ethics and integrity set in the Constitution
The IEBC has clear constitutional backing to enforce this principle and ensure candidates meet the highest credibility test, including their criminal history and financial probity. In fact, the law allows the electoral commission some latitude such that the candidates can be obligated to provide this information under oath.
Consequently, the IEBC has to draft strong law directing parties to publish the names and pending criminal cases of their candidates. This is a bold step to cleanse Kenya politics of leaders facing trial for serious crimes and hence criminalisation of politics.
Rapid criminalisation of politics cannot be arrested by merely disqualifying tainted legislators but should begin by “cleansing” parties. The IEBC should frame a law that makes it obligatory for parties to remove politicians charged with heinous and grievous crimes such as murder, corruption, grabbing, human rights violations and economic crimes and refuse them a ticket in all elective offices. The nation eagerly awaits such legislation. It is a constitutional mandate of the IEBC to disqualify or ban candidates facing trial for heinous crimes from vying.
The IEBC should ensure candidates divulge their criminal past under oath in “block letters.” They should also make a full disclosure of their pending criminal cases to the parties under which they intend to vie.
The parties, in turn, should publish the details and cases for the public in widely circulated newspapers and announce on radio and TV, not once, but thrice after the filing of nomination papers.
This law compelling parties to come clean about the criminal elements within their apparatus is unique as it opens a new vista that the process of breaking crime-politics nexus extends much beyond the purity of legislators and encompasses purity of the parties as well. The directions to political parties to go public about their candidates will help foster and nurture an informed citizenry.
This ensures voters have an “informed choice” about who to vote for in a country that already feels agonised when money and muscle power become the supreme power. Criminals and benefactors of corruption in power are nothing but a liability to the country and strike at the roots of constitutional democracy.
Candidates, as is expected by the democratic system, should not have criminal antecedents and the voters have the right to know about their past, assets and other aspects of integrity. Citizens in a democracy cannot be compelled to stand as silent, deaf and mute spectators to corruption.
Criminalisation of politics and corruption, especially at the entry-level of elections, has become a national and economic terror. It is a disease that is self-destructive and becoming immune to antibiotics.
IEBC MUST ACT
The electoral agency is obligated to act, as criminalisation in politics undermines democracy. It has been misleading that its hands are tied. It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and make laws should be above any kind of serious criminal allegation.
The danger of false cases foisted on candidates can be addressed in the new law. Criminality in politics should be kept at bay and the malignancy is not incurable. Public office cannot be a paradise for criminals.
The writer is Executive Director, International Center for Policy and Conflict, @NdunguWainaina