Samuel Kimeu: Judicial ambiguity on matters integrity
By Samuel Kimeu
The Constitution of Kenya 2010 heralded a new regime in the way Kenya is governed and the conduct of leaders holding constitutionally mandated offices. The values and principles of governance provided for under Article 10 of the Constitution support the aspirations of Kenyans for leadership based on ‘good governance, integrity, transparency and accountability’
More importantly, Kenyans adopted the Constitution with a Chapter on Leadership and Integrity that has elaborate provisions on ‘responsibilities of leadership’ and ‘conduct of state officers’, placing a momentous responsibility on parliament to enact legislation establishingi the Ethics and Anti-Corruption Commission as well as a legislation to enforce Chapter Six on Leadership and Integrity. The Constitution under the Principles of Public Finance also espouses the aspirations of Kenyans based on openness, accountability and participatory utilization of public resources.
The chronology of interpretation of Chapter Six of the Constitution by the judiciary can be traced back to the prominent case of the first Deputy Chief Justice (DCJ) under the 2010 Constitution. The DCJ Ms. Nancy Makokha Baraza was accused of gross misconduct and misbehaviour. The Tribunal investigating her Conduct chaired by Chief Justice (Rtd.) Augustino S. L. Ramadhani in making its findings for the removal of the DCJ noted that the standard of proof of the allegations on this indictment was not the proof required in a criminal trial.
Yet another judicial enquiry involved the leadership of the Ethics and Anti-Corruption Commission (EACC). Through a petition questioning the constitutionality of the appointment of Mr. Mumo Matemu as the Chairperson of the EACC, the High Court adopted the reasoning that a person lacks integrity when there are serious unresolved questions on their integrity or lacks commitment to the national values enshrined in the Constitution. This reasoning further connotes that a person need not be convicted of a criminal offence to lack integrity.
Ferdinand Waititu, now seeking to be the Kiambu County Governor, was found to fall short of the Constitutional requirements on integrity. This was in a case challenging his appointment as the chairman of the Athi Water Services Board in which the court adopted the ‘serious unresolved questions’ criteria with regard to Mr. Waititu’s integrity.
In a departure from the bold interpretation and determinations made in the mentioned matters, majorly concerning individuals appointed to public offices, the Judiciary has shied away from making determinations of suitability to hold office for elective positions. The most prominent case in this regard was a case challenging the participation of Uhuru Kenyatta and William Ruto, at the time indictees of the International Criminal Court, in the 2013 general elections.
The High Court declared that it had no jurisdiction to decide on the Uhuru Kenyatta’s and William Ruto’s qualification to participate in the presidential elections. This even with the court’s observation that it is not up to an individual to gauge his or her own uprightness on integrity but rather what value the public give to their character and uprightness in upholding the values adopted to hold public positions in society.
The late Otieno Kajwang was also subject to a judicial process while seeking an elective post as the Senator of Homabay County. The High Court in this case also adopted the ‘unresolved issues of character’ as the threshold on integrity. The Court however held that discipline by the Disciplinary Committee per se was not a ground for disqualification, once the disciplinary measures have been discharged.
The Supreme Court has also been an accomplice to the half-hearted efforts to enforce Chapter Six having failed to make a decisive decision in the case against Moses Masika Wetangula. Mr. Wetangula had been found culpable by the Court of Appeal for voter bribery but the court failed to disqualify him from participating in an electoral contest and shifted the responsibility to IEBC which conveniently failed to discharge their mandate in this regard.
This self-defeating approach has been repeated in successive cases involving integrity of politicians. More recently IEBC has demonstrated the same approach by administratively failing to bar candidates with ‘unresolved integrity issues’ from contesting in up-coming 2017 general elections. This happened in spite of a spirited campaign by Civil Society under the National Integrity Alliance and the EACC submitting names of politicians who did not meet the requirements of Chapter Six.
In the words of the Attorney General Professor Githu Muigai, “The weakest link in the fight against corruption is in the courts…” This statement was an indictment on the failure by the courts to effectively carry out their mandate with delayed corruption cases and seemingly protectionist judicial processes giving credence to accused persons to subvert judicial processes. The same may be said of the Judiciary and the IEBC when it comes to the enforcement of Leadership and Integrity standards.
The courts have passed the buck to IEBC while the latter has referred matters of determining suitability to the courts in complete disregard of their mandate. The Kenya National Commission on Human Rights has however given the Judiciary a chance to redeem itself by seeking an advisory opinion from the Supreme Court on enforcement of Chapter Six in relation to elective positions. The advisory opinion, once delivered may offer clear guidance on enforcement of integrity standards as a mean to reforming leadership in Kenya.
Mr. Samuel Kimeu is the Executive Director, Transparency International Kenya