How feuding agencies gave ‘tainted’ leaders a free pass
IEBC chairman Wafula Chebukati (centre) speaks on 25 June 2022 during a meeting with Kenya Media Stakeholder Working Group in Diani, Kwale County. A brief exchange at a workshop between IEBC and EACC officials illustrated how feuding among various public agencies has allowed "tainted" aspirants to get free passes to the ballot paper.
A brief exchange between officials of electoral and anti-corruption commissions at a workshop over the weekend illustrated how feuding among various public agencies has allowed political aspirants facing corruption probes or presenting dubious academic qualifications are getting free passes to the ballot paper.
During an engagement on Saturday between the Independent Electoral and Boundaries Commission (IEBC) and Kenya Media Stakeholder Working Group, Mr Phillip Kagucia, a deputy director and head of asset recovery at the Ethics and Anti-corruption Commission, recounted how the anti-graft agency had red-flagged 241 aspiring candidates for the forthcoming elections.
But, he said, the electoral agency had ignored the recommendation that the aspirants with outstanding criminal cases and other integrity issues be shut out of the elections, and went ahead to clear most of them.
Soon after, IEBC commissioner Francis Wanderi stood up to counter Mr Kagucia’s claim, insisting that it was the EACC itself that had originally given the all-clear to all the aspirants it was asked to scrutinise.
During vetting, he said, they all presented signed and legitimate clearance forms from EACC alongside approvals from other agencies involved, including Kenya Revenue Authority tax compliance forms, Directorate of Criminal Investigations certificates of ‘Good Conduct’, and Higher Education Loans Board payment confirmations.
Pointing fingers at IEBC
It was on that basis the aspirants were cleared, Mr Wanderi said, only for EACC to later turn around and issue a fresh list of aspirants who should not be cleared, and pointing fingers at IEBC.
With the electoral commission now set to gazette contestants for various seats, queries will be raised if many of them would have been disqualified had there been more rigorous and coordinated application of the law as set out.
It is also apparent that IEBC chairman Wafula Chebukati seems to have thrown up his hands on enforcement of key provisions of the Elections Act, the Election Offenses Act and the Elections Code of Conduct, which if properly applied would sanction or even bar erring candidates from the General Election.
Recently, he released a statement pleading helplessness on the violence witnessed at a political rally convened by Deputy President William Ruto at the Jacaranda grounds in Nairobi.
He argued that a recent High Court decision on the Sabina Chege incitement case stripped him of powers to penalise election candidates who resorted to violence, so he passed the buck to the DPP Noordin Haji.
Investigations by DCI
However, the DPP would be unable to prosecute unless the matter is first investigated by the DCI and appropriate recommendations made, including identification of individuals found responsible for the violence.
The trouble is that Mr Haji and DCI Director George Kinoti are in the throes of serious turf wars. The latter has issued a memo ordering his staff not to cooperate with Mr Haji’s office. On the drama around the suspicious degree certificate presented by Nairobi Senator Johnson Sakaja, the IEBC gave him the all-clear to run for governor despite an ongoing police investigation and validity of the degree being reversed by the Commission for University Education.
The greatest challenge for clearance has been fulfilment of the moral and ethical requirements under the Leadership and Integrity Act and Chapter Six of the Constitution. Some politicians have also found it difficult proving the authenticity of their academic qualifications.
Disharmony among agencies such as the EACC, the Commission for University Education (CUE), the DCI, the Director of Public Prosecutions (DPP) and the National Cohesion and Integration Commission (NCIC) has come out into the open. For instance, the electoral body submitted a list of 21,863 aspirants to EACC for checking. However, when the anti-corruption agency first cleared, and then recommended that 241 of them be barred, Mr Chebukati declined to take action.
Two barred
Only two aspirants who had been impeached were barred — Mr former Nairobi governor Mike Sonko who is seeking the Mombasa governor seat and Mr Karungo wa Thang’wa who is seeking Kiambu senatorial seat.
“EACC considers these persons to have fallen short of the moral and ethical standards stipulated for election to public office. EACC hopes that IEBC will make appropriate decisions guided by Constitutional Values and public interest,” Twalib Mbarak the chief executive of EACC said in a statement.
Mr Chebukati has found it frustrating enforcing the Electoral Code of Conduct in cases where there is conflict between law and morality.
The commission has cleared some candidates with criminal cases since they have not exhausted all available avenues. Convicted Sirisia MP John Waluke was cleared as his appeal is still in court.
The IEBC position was stated by its lawyers during a hearing at the High Court.
Not a conveyor belt
“The EACC cannot direct IEBC on how to exercise its mandate. IEBC is not a conveyor belt to receive materials and act as recommended. It is not under direction or authority of anyone,” lawyers Charles Mwongela, Edwin Mukele and Zephania Yego argued.
After the violence witnessed at Jacaranda grounds recently at the Ruto rally, Mr Chebukati declined to take action, but instead called on Mr Haji to prosecute those involved. However, no one has been charged so far with the electoral offence.
He blamed inability to investigate and punish politicians who flout the Electoral Code of Conduct on a High Court ruling that ruled in favour of Murang’a woman representative Sabina Chege.
“The High Court declared the Electoral Code of Conduct Enforcement Committee unconstitutional, thereby withdrawing from the commission the constitutional and statutory power to enforce the said code. It is only the ODPP that has power to order investigations and to prosecute offences under the Act,” Mr Chebukati said.
Pursuing an appeal
Last Friday, he confirmed that the IEBC is pursuing an appeal against a decision that ties its hands on enforcement of election laws.
On February 17, 2022, the Solicitor General Kennedy Ogeto convened a meeting to arbitrate between agencies that were each claiming the responsibility to vet and approve or reject political aspirants’ academic papers.
The meeting was necessary because of an ongoing court case challenging the legality of the Kenya National Qualifications Framework Regulations, 2018 on recognition, equation and verification of qualifications obtained locally and abroad.
After deliberations, one of the parties, the Kenya National Qualifications Authority (KNQA), was asked to relinquish its claim to vet the papers and the same was handed over to the CUE, the Technical and Vocational Education and Training Authority (Tveta) and the Kenya National Examinations Council (Knec).
“The fact that the regulations had not been submitted to Parliament and that they were therefore invalid was unanimously agreed upon by the parties at the meeting. In that context, there is no law that empowers KNQA to recognise or equate foreign academic qualifications. The said functions are conferred upon KNEC and CUE by their respective statutes,” Mr Ogeto told Nation.
Questions over capacity
However, there are now questions over the capacity of the agencies to determine the authenticity of academic certificates, both locally obtained and foreign.
The most prominent case that has tested the capability of CUE has been that of Mr Sakaja, whose degree certificate from Team University of Uganda was initially recognised by CUE but later revoked following complaints over its authenticity.
The issue also exposed confusion at the CUE after the chief executive, Prof Mwenda Ntarangwi, validated the degree, only for the decision to be reversed by the chairman, Prof Chacha Nyaigoti Chacha, who does not have executive functions.
Prof Ntarangwi said recognition of Mr Sakaja’s degree had been granted based on responses from Team University and the National Council for Higher Education (NCHE), the Ugandan regulator.
The KNQA director-general Dr Juma Mukhwana told Nation that the authority is developing a National Qualifications Information Management System (NAQMIS) which will be a one-stop database of all qualifications ranging from the basic, Tvet and university sectors.
“KNQA normally insists on KCSE certificate, transcripts, thesis and final certificate to ensure that the student qualified to join university. Is the university accredited, did he cover all nautical hours?” Dr Mukhwana said.
“The law grants us power to establish such a database. We have also set standards (also called level descriptors) for all levels of qualifications upon which one can measure if a certificate is valid or not.”
Gazetted standards
The authority has also gazetted standards for each qualification in Kenya and for the ones acquired abroad and brought into the country.
“This standard is what is used to verify and equate certificates. Detailed examination of the validity of a qualification is actually the work of the KNQA as is the practice all over the world. Our work has, however, faced challenges including court cases. Hopefully this will be resolved someday,” he said.
