Electoral Process: The Irony of Integrity in Kenya’s Leadership

At the beginning of June, the Independent Electoral and Boundaries Commission (IEBC) received 106 cases from the Ethics and Anti-corruption Commission (EACC) on the subject of enforcement of Chapter Six of the Constitution on Leadership and Integrity.

The cases revolves around certain candidates vying for different positions in the forth coming 2017 General Elections.

Although the IEBC has given directions to the EACC to seek for more information and clarification, Commission for University Education with regard to cases with questionable academic qualification and the Public Service Commission and Judicial Service Commission for clarification in respect to former state and public officers, there has been uproar on candidates who are allegedly mentioned in the report.

However, it is absurd that before the political parties nomination exercise, the Registrar of Political Parties (RPP), Registered Political Parties and the Judiciary should have been at the forefront in helping the electorate to discern which candidate has met the threshold of Article 73 of Chapter 6 of the Constitution.

Related: Electoral Process: Political Parties Nominations Will be a Preview of the General Elections 

Before the IEBC gazettes the final list of aspirants to participate in the August 8 General Elections after completing hearing and making a determination on complaints received arising from party nominations, it is important that they put their words into action.

“The Commission will exercise its discretion to ensure that Chapter Six of the Constitution is complied with,” said Wafula Chebukati, Chair to the Commission.

It should be noted that the Constitutional Court in the Petition challenging, questioning the Constitutionality of the appointment of Mr. Mumo Matemu as the chairperson of the Ethics and Anti-corruption Commission gave precedence, potency to Chapter 6 of the Constitution of Kenya 2010.

The Court by its decision has stated on the question of integrity that:

“A person is said to lack integrity when there are serious unresolved questions about his honest, financial probity, scrupulousness, fairness, reputation, soundness of his moral judgment or his commitment to the national values set out in Article 10 of the Constitution.

That for the purposes of the Integrity test in the Constitution, there is no requirement that the behavior, attribute or conduct in question has to rise to the threshold of criminality.  That the fact that a person has not been convicted of a criminal offence is not dispositive of the inquiry whether they lack integrity or not.  That it is enough if there are sufficient serious, plausible, allegations which raise substantial unresolved questions about one’s integrity.”

Then, the Constitutional Court was composed of  a three judge bench: Justices Joel Ngugi, Mumbi Ngugi and Vincent Odunga who made the ruling in the High Court Petition No. 229 Of 2012.

Article 73 of Chapter 6 of the Constitution stipulates that the guiding principles of leadership and integrity include:

1. a)     Selection on the basis of personal integrity, competence and suitability or election in free and fair elections
2. b)    Objectivity and impartiality in decision making and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices.
3. c)     Selfless service based solely on the public interest demonstrated by:

•    Honesty, in the execution of public duties and
•    The declaration of any personal interest that may conflict with public duties

1. d)    Accountability to the public for decisions and actions
2. e)     Discipline and commitment in service to the people

Yash pal Ghai and Jill Cottrell Ghai in their book, “Kenya’s Constitution: An Instrument For Change”, on integrity, transparency and accountability, they argue that, the responsibility to serve the people, rather than to rule them is a key concept of the Constitution. This is because holders of public office, are paid from the taxes that ordinary people pay.

It is only judges, the Auditor General and the Controller of Budget that their qualifications are clearly set out. “The Constitution is however, very clear on integrity issues,” thy state.

“No one has been removed from any state office for breach of the principles of Chapter 6 on integrity can ever hold state office again (Article 75(3). It should be interpreted widely: a person who is removed or who “steps asid