Chief Justice Martha Koome has appointed a three-judge bench to determine eight cases involving a decision of the electoral commission to allow persons with active criminal and corruption cases to run for elective positions in the August 9 elections.
The bench will be presided by Justice David Majanja while the other members are Justices Chacha Mwita and Mugure Thande.
The judges have also been tasked with determining whether persons impeached from a public office can vie for any other elective position and whether persons with questionable integrity should be allowed to contest.
The petitions were filed separately in different courts. The petitioners include civil society groups and individuals such as rights activist Okiya Omtatah, Inuka Kenya na Sisi organisation, lawyer Edward Asitiba and Mukidi Jwenge. Others are Kelvin Njui, Silvester Kipkemoi, Ndoro Kayuga and Kituo cha Sheria.
Deputy Registrar of the Constitutional and Human Rights Division in Milimani law court Njeri Thuku Tuesday directed the parties to file copies of their pleadings before June 6. The bench will give directions in due course, she said.
The petitioners believe that both Mr Sonko and Mr Thangw’a are unsuitable to contest or hold a public office, having been impeached and the same impeachment having been not overturned by court.
The basis of their case is Article 75(3) of the Constitution, which bars a person removed from office from ever holding any other state office.
Mr Sonko was impeached from the office of the governor on December 17, 2020. The Senate, while passing the resolution to remove him from office, found him guilty of plundering public resources, persistently intimidating and molesting officers of the County Executive Committee and unlawfully using public funds to pay for his daughter’s travel to New York, USA.
He was also found guilty of persistently and wilfully using, publicising and publishing abusive and unbecoming words and language as evidenced by his social media posts. Further, he made numerous rants in which he hailed abuses and conducted himself in a manner that undermines and demeans the office of the governor.
Mr Thangw’a was impeached by the Kiambu County Assembly in October 29, 2019, over alleged gross misconduct, incompetence and abuse of office during the tenure of former governor Ferdinand Waititu. He was the county government’s minister for Youth Affairs and Sports.
The other three cases involve the general interpretation of Chapter Six of the Constitution on leadership and integrity.
Mr Asitiba wants court to declare that candidates with unresolved court cases involving economic crimes, abuse of office and capital offences should not contest for public offices until they have been cleared of the charges.
“The presumption of innocence notwithstanding, the petitioner argues that allowing such aspirants to run for office is to risk having corrupt officials with tainted records hold public/state offices and the inevitable consequence is increased looting,” he says in the court papers.
Ethics and code of conduct
The petition comes a month after the electoral agency said it cannot bar persons with integrity questions from contesting for elective seats, as it blamed the courts for hindering its mandate to enforce ethics and the code of conduct in the elections process.
The commission also holds that the reports submitted to it by the anti-corruption watchdog on the integrity of each election candidate are not conclusive in determining the suitability of a candidate to vie unless backed by an order from a court or a quasi-judicial body.
Mr Asitiba says that continued failure by the Independent Electoral and Boundaries Commission to enforce constitutional provisions on leadership and integrity has kept unfit persons in state offices to the detriment of Kenyans.
This, he says, has eroded public confidence and trust in the electoral process and the statutory bodies mandated to protect the interest of citizens.
