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INTEGRITY THE WEAK LINK

How Supreme Court denied to rule on integrity for holding office

Court declined to hear request for advisory opinion on Artcle 6 and test of integrity to hold office.

In Summary

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

• Has Chapter Six on integrity sufficiently served the purposes for which it was enacted? 

Supreme Court judges Njoki Ndung'u, Smokin' Wanjala, Deputy Chief Justice Philomena Mwilu, Chief Justice David Maraga, Jackton Ojwang and Isaac Lenaola during the hearing of the petition against President Uhuru Kenyatta's election on November 15, 2017
IT SHOULD HAVE RULED: Supreme Court judges Njoki Ndung'u, Smokin' Wanjala, Deputy Chief Justice Philomena Mwilu, Chief Justice David Maraga, Jackton Ojwang and Isaac Lenaola during the hearing of the petition against President Uhuru Kenyatta's election on November 15, 2017
Image: FILE

It is trite to say that public leaders, like Caesar’s wife, should be beyond reproach.

It is for this reason that on August 27, 2010, Kenyans promulgated a new Constitution with a chapter dedicated to leadership and integrity.

Chapter Six sets personal integrity as the yardstick for appointment and election to state office. The primary objective is to enhance accountability in public affairs.

As the country marks 10 years of implementing the new Constitution in August, a pertinent question arises: Has Chapter Six sufficiently served the purposes for which it was enacted?  

It cannot be denied that Kenya still suffers serious deficits in leadership and integrity among state and public officials. This points to challenges in implementation of Chapter Six.

Even though various challenges such as weak statutory frameworks and citizen apathy could be cited as some obstacles, the biggest blow is the Supreme Court ruling in theAdvisory Opinion Reference 1 of 2017 — Kenya National Commission on Human Rights vs  Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR.

Article 259 imposes a duty on the courts to interpret the Constitution in a manner that promotes its purposes, values and principles, permits development of the law and contributes to good governance.

The gaps in the Leadership and Integrity Act, 2012 cannot thus be an excuse for the country not to fully apply Chapter Six in the election of persons to public office. The courts have inherent powers to unlock it for effective application in the clean-up of our politics.

Although superior courts have registered sound jurisprudence in several other aspects of the fight against corruption — including in the [Stanley] Amuti case, [Evans] Kidero case and [Tom] Ojienda case — the Supreme of Court failed Kenyans when it was called upon to interpret and develop jurisprudence on this chapter in the cited advisory opinion.

The KNCHR, EACC, the IEBC and other agencies had moved to the court in 2017 to render an advisory opinion and provide guidance on the test of integrity required for election or appointment of persons to office. 

The thrust of the case was that the High Court and the Court of Appeal had interpreted the chapter in a restrictive, conflicting, inconsistent and incoherent manner, resulting in a confused jurisprudence.

Although the courts have generally recognised the need to implement and observe the chapter, the various decisions have so far been contradictory, inconsistent, and incoherent. They don't offer any clear or conclusive determination of the proper integrity test.

This, coupled with the weaknesses in the Leadership and Integrity Act, has remained the major obstacle to effective implementation. There was thus an urgent need for guidance by the apex court.

Before the matter was heard, activist Okiya Omtata, an interested party, raised a preliminary objection contending the court had no jurisdiction to render the sought advisory because there were two related petitions pending before the High Court.

In a majority decision of 5-2 in February this year, the Supreme Court rendered its ruling. It allowed the preliminary objection, effectively declining to hear the matter citing lack of jurisdiction. The majority bench cited the two petitions that have been pending in the High Court since 2017.

In the dissenting opinions, however, Justices Isaac Lenaola and Mohammed Ibrahim argued that the court indeed had jurisdiction to hear the matter and that it was of great importance for it to provide guidance on how the chapter should be applied.

In his dissenting opinion, Justice Lenaola said: “I, therefore, find, without hesitation, that time is ripe for consideration and direction by the Supreme Court on the applicable criteria under Chapter Six 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.”

“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?”Lenaola further asked.

Justice Ibrahim adopted this dissenting opinion.

The dissenting voices are a clear indication of what Kenyans yearn for and  an affirmation of a good opportunity that arose to resolve the jurisprudential confusion that has impeded the effective enforcement of the Integrity chapter since 2010.

The highest court acknowledged several of its previous decisions where it has affirmed its unfettered discretion regarding when to exercise jurisdiction and render advisory opinions under Article 163(6).

As observed by the dissenting judges, this was a proper case where the scales of justice should have tilted towards the exercise of jurisdiction, considering the great national importance and overwhelming public interest in the effective implementation of Chapter Six.

The Supreme Court, as the final arbiter in Kenya, should have given direction, guidance and breathe life into this matter. In this case, its act of deference, with tremendous respect, denied Kenyans a hand in the quest to hold political leaders accountable.

The writer is a governance expert. [email protected]