Jubilee coalition presidential aspirant Uhuru Kenyatta and running mate William Ruto may be allowed to contest the March 4 General Election, the electoral commission said on Thursday.
No candidates facing criminal charges will be denied nomination as long as they conform to the rules required of the elective posts that they are seeking, according to Independent Electoral and Boundaries Commission (IEBC) chairman Issack Hassan.
“The law says that until those people are found guilty and that they have exhausted all avenues of appeal, they can still contest,” Mr Hassan said in an exclusive interview with the Nation at his Anniversary Towers offices in Nairobi.
“They will therefore not be denied nomination,” he said, adding that the commission would publish nomination requirements for each of the six elective posts.
However, when asked to state categorically if Mr Ruto and Mr Kenyatta were among the aspirants facing criminal charges who would be allowed to contest, he was non-committal.
“No comment on these two since their matter is in court,” he said, referring to a pending High Court ruling on whether the two are eligible to run.
This may come as a reprieve for the two and eight other MPs already facing charges in the courts.
Mr Kenyatta and Mr Ruto have been charged at the International Criminal Court with crimes against humanity arising out of the 2007/08 post-election violence.
They are presently awaiting a decision of the High Court on whether they are still eligible to hold public office.
Their High Court case comes up for hearing later this month. The IEBC has set the deadline for nomination on January 29 and 30.
The High Court has been asked to determine if the two meet the requirement of Chapter Six of the Constitution on leadership and integrity.
Mr Hassan’s declaration could provide relief for eight other MPs and new political aspirants who have court cases, but are seeking elective posts.
The MPs include Naivasha’s John Mututho, Ferdinand Waititu (Embakasi), Gidion Mbuvi (Makadara) and Dhadho Godhana (Galole). Others are Gatundu North MP Clement Waibara, William Kabogo (Juja), Peter Mwathi (Limuru) and Sheikh Mohammed Dor (nominated).
Mr Waititu, who is eyeing the Nairobi governorship, is facing incitement charges, which cost him his job as Water assistant minister.
He is accused of having incited his constituents to violence and uttering hate remarks.
Mr Mbuvi, also known as Sonko, has a case at the Kibera law courts for assaulting a police officer at Jomo Kenyatta International Airport.
The Gatundu North MP is charged with conspiracy to kill his former political ally, Mr Bernard Chege Mburu, while Mr Godhana is standing trial for incitement arising from the ethnic clashes in Tana Delta.
He also lost his post as Livestock assistant minister.
Mr Kabogo has been adversely mentioned in the inquest into the death of University of Nairobi student Mercy Keino.
ODM nominated MP Sheikh Dor was charged last year with incitement to violence after remarks he allegedly made in connection with the controversial Mombasa Republican Council and the violence that rocked the area. He was released on a Sh2 million bond.
Mr Mwathi rushed to the High Court to stop hate speech charges, but the court dismissed the application.
Mr Mututho is charged with fraudulently obtaining money from Kenyatta National Hospital as reimbursement for import duty and Value Added Tax.
The Ethics and Anti-Corruption Commission (EACC) has also expressed similar views on political aspirants faced with criminal charges.
“The law is very clear that all those with court cases are free to run for elective office until all avenues of appeal have been exhausted,” the commission’s vice-chairperson, Ms Irene Keino, said.
Mr Kenyatta’s spokesman, Mr Munyori Buku, said the IEBC was stating the correct legal position.
“That is the correct legal position. The others being spewed out are based on whims of individuals who are out to block the will of the people,” Mr Buku said on Thursday.
The former chairman of the Kenya National Commission on Human Rights, Dr Samuel Tororei, said the IEBC boss was quoting the constitutional provision that those charged or convicted but had not exhausted avenues of appeal, should be allowed to run.
“The provision specifically deals with criminal culpability and not ethical issues which are not clearly defined in the Constitution,” he said.
But lawyers criticised the IEBC position, saying the matter was still in court.
“The statement by the IEBC is unfortunate because the court might rule otherwise. However, it would have been the right body to comment if the matter was not in court,” said Law Society of Kenya chairman Eric Mutua.
Chapter Six of the Constitution provides that only leaders of integrity should vie for office, but does not give the specific benchmarks that they should meet.
The chapter was also amended by MPs to clear the way for candidates, even those who have been adversely named in parliamentary and other reports, to contest.
Meanwhile, Mr Hassan has asked political parties to submit lists of their nominees and party symbols in soft copy to enable easier transmission of data to the printers of the ballot papers.