The electoral commission has joined the anti-graft agency in warning impeached governors that they won’t secure clearance to contest elections even as politicians fought the sanctions, rekindling how Parliament watered down integrity laws.
A day after the Ethics and Anti-Corruption Commission (EACC) declared any person removed from a public office on integrity concerns won’t obtain clearance, the Independent Electoral and Boundaries Commission (IEBC) signalled such persons will be disqualified.
The statements were prompted by the bid by Mr Ferdinand Waititu, who was impeached early this year as Kiambu governor, to contest the Nairobi governor’s by-election in February occasioned by the impeachment of Mr Mike Sonko.
“While the constitutional responsibility to clear aspirants to vie lies with the IEBC, EACC is mandated to enforce the provisions of Chapter Six, including mandatory integrity requirements for all candidates,” EACC said in a statement signed by CEO Twalib Mbarak.
“Any person who has misused or abused a State office or public office or in any way contravened Chapter Six as contemplated under Article 99 (2) (h) and 193 (2)(g) shall also be disqualified,” said Mr Mbarak.
“For avoidance of doubt, the findings contemplated in these clauses include the findings of a court of law and any other competent agency mandated to interpret or apply the constitution or any written law,” he added.
IEBC chairman Wafula Chebukati said while the law is clear those convicted for more than six months are not eligible to stand for an elective position, similar restriction also apply to those impeached.
“Similarly under Chapter 6, Article 75 and 180 of the constitution read together with Article 193 of the constitution, it is very clear that a person or an individual who has been impeached cannot run for an elective position,” Mr Chebukati said yesterday.
It is an interpretation that has infuriated politicians. Senators Kipchumba Murkomen and Ledama ole Kina backed impeached governors saying nothing in law stops them from vying in subsequent elections.
Mr Murkomen described the interpretation that bars impeached officials from contesting elections as “incongruous and absurd”.
Eternal political purgatory
“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,” he wrote in a tweet.
Mr Murkomen said the constitution under Articles 99 and 193 allows a person convicted for 40 years to run for office after serving the sentence.
He, therefore, said it would be manifestly unjust and absurd to argue that a person impeached through a political process is permanently barred from holding public office.
"If you’re imprisoned for six months or more, you’re disqualified from running for office for the period you’re serving the sentence. If convicted for less than six months you can run for office even in prison. Once you complete your jail term (six months or more) you can run for any office.”
Ole Kina also opposed the interpretation adopted by EACC and IEBC saying it overrides the due process of the law. "We must end this political mendacity, selfish interest and allow the rule of law to govern this county we all love," he tweet.
The latest campaign to shield impeached officials adds to past efforts in which Parliament rewrote electoral laws to expunge stringent provisions such as those that barred anyone facing criminal trial from vying and the requirement that candidates publicly declare their wealth.
The framers of the constitution placed the highest premium on integrity for state officers, both appointed and elected, under Chapter Six on leadership and integrity that detailed requirements on the conduct of state officers while in office, financial probity, restrictions on their conduct while in office and the attendant sanctions.
However, the implementation of the chapter was compromised from the outset in 2011 when the 10th Parliament enacted a watered down version of the Leadership and Integrity Bill in what is considered a deliberate attempt at sabotaging the enforcement of the strict ethical and moral requirements as contained in the constitution.
While the initial Bill had outlawed anyone facing criminal trial from vying, the law that was eventually passed by MPs allowed those with pending criminal court cases to contest elective posts until they had exhausted the judicial process.
It stripped EACC the powers of getting information from state agencies on individuals seeking leadership positions and denied the commission prosecutorial powers and ability to offer compliance certificate to candidates.
Other provisions removed from the original bill included the requirement for state agencies to vet all candidates seeking elective and appointive seats and mandatory declaration of wealth by candidates.
The second major blow to the integrity test was in the 2013 case in which the International Centre for Policy and Conflict (ICPC) had sought a declaration from the High Court that Mr Uhuru Kenyatta and Mr William Ruto were not eligible to contest for the office of the President and Deputy President having been indicted by the International Criminal Court (ICC) for crimes against humanity.
ICPC contended that the candidature of the two ran contrary to the tenure, ideals and spirit of the constitution, especially Chapter Six and were thus prohibited from contesting, even being considered for nomination, respectively.
The court shifted the burden of deciding upon eligibility to the IEBC arguing that if the two did not meet the integrity and leadership qualification as spelt out in the constitution, then the institution with the constitutional and statutory recognition would be the IEBC.
On the latest campaign on impeached officials, legal scholar Makau Mutua supported the EACC interpretation and urged Mr Waititu to spare Nairobi residents his antics.
“The law is clear,” he tweeted, “A governor impeached in one county can’t run for the same office, or any other public office anywhere in the Republic of Kenya.”
Lawyer Donald Kipkorir also urged other state agencies like Kenya Revenue Authority, Directorate of Criminal Investigations, Higher Education Loans Board (Helb) and Financial Reporting Centre (FRC) to enforce the integrity provisions.
Tharaka Nithi senator Kithure Kindiki had also dismissed Mr Waititu’s intention saying that an impeached governor cannot subsequently run for election.
“Article75 (3) bars a person removed from office for violation of the integrity provisions of chapter six from holding any other state or public office,” he said on his face book page.
Transparency International (TI) says the integrity test in the Leadership and Integrity Act and other statutes has been undermined by lack of sufficient enforcement mechanisms.
“The agency tasked with the enforcement of Chapter Six is not vested with sufficient powers and resources to enforce accordingly. There is also lack of a comprehensive mechanisms for determining compliance with Chapter Six for individuals seeking appointive and elective positions in State and public offices,” the agency says in an analysis released last October.
