In March, the Attorney-General, the Independent Electoral and Boundaries Commission, the Ethics and Anti-Corruption Commission and the Registrar of Political Parties formed a “working group” to deliberate on the implications of Chapter 6 of the Constitution on the coming elections. The overall objective was to ensure that only candidates who espouse integrity are elected to public office to facilitate the realisation of the ideals of the Constitution and Vision 2030.
This signalled change that would see politicians with ongoing criminal cases, including those fighting corruption and hate speech charges, and those with fake academic papers, being barred from vying. Contrary to earlier indications, the list of those cleared by the IEBC is replete with the names of individuals with all manner of integrity issues. Individuals suspected of economic crimes, hate speech and some who have cases in court have been given the nod. In fact, some of the people cleared have been found to have been involved in gross misconduct. Clearly, the IEBC and the “working group” have found themselves in a quandary, especially over the formula to ensure compliance with constitutional requirements on leadership and integrity. It is not clear whether or not the IEBC is liaising with the other agencies in the “working group” or whether information from these other agencies is considered before clearing candidates for the August 8 General Election. Perhaps the process boils down to candidates providing a checklist of documents and clearance, including the certificate of good conduct. I do not envy the person having to make the final decision. However, someone must muster up the courage to do so or else the country will ultimately collapse under the pressure of bad leadership, cartels, graft, nepotism and tribalism. We are being presented with candidates who will most likely abuse their offices, raid public coffers or abuse the law.
What does chapter 6 mean and how can its aspirations be realised? This very question prompted the Kenya National Commission on Human Rights to seek an advisory opinion from the Supreme Court. The commission wants the court to elucidate whether chapter 6 sets up a fit and proper test for leadership for both elective and appointive offices; whether that test should be objective or subjective; and whether it should be wider than the criminal test. Should the Supreme Court determine that the criminal test should be applied, then chapter 6 will be dead on arrival because a body seeking to bar an individual from running for an elective post must as a matter of law show “beyond reasonable doubt” that they are corrupt or unfit for office. This approach would protect the rights of that individual at the expense of the public good. It is noteworthy that the difference between a criminal matter, on the one hand, and a person seeking elective post, on the other hand, is that if found guilty, the person would go to jail or be condemned, whereas, to a politician, the worst that can happen is that he would be barred from vying. As in, criminal cases, the threshold is very high because there is a likelihood of literally losing one’s life or liberty whereas the same is not true of a politician. Can these two scenarios be conflated to the same standard of proof? Should the court interpret the requirements in a more objective manner, it will be easier for mandated bodies such as the IEBC and the registrar to weed out leaders whose past conduct is unworthy of elective office. However, great care must be taken to ensure that frivolous allegations are not peddled just to bar individuals or opponents from elective office. As such, the institutions charged with determining the eligibility of candidates must be neutral, judicious and above par. The rules must apply equally to all regardless of status, class, tribe, race, sex and age.
The Supreme Court has its work cut out for it because different court interpretations on the integrity threshold have rendered chapter 6 toothless and ineffective. Leaders with integrity issues must be stopped from using elective posts to shield themselves from justice and further enrich themselves. The IEBC must explain to Kenyans why so many candidates with integrity issues have been cleared, contrary to past assurances.