Why KNCHR case in Supreme Court should worry corrupt politicians

People of questionable integrity seeking elective positions in the forthcoming elections have a reason to worry.

This is after the Supreme Court begins to hear a case filed by the Kenya National Commission on Human Rights (KNCHR) seeking an advisory opinion on the strict implementation of Chapter Six of the Constitution.

The KNCHR case, filed five weeks ago, will be mentioned on Monday before the Supreme Court’s deputy registrar, setting its hearing by a bench led by Chief Justice David Maraga in an unprecedented move that would spell doom for some aspirants with integrity questions.

KNCHR wants the Supreme Court to make a specific finding as to whether Chapter Six of the Constitution sets up a fit and proper test for leadership for both elective and appointive offices and whether that test should be objective or subjective and also whether that test should be wider than the criminal test.

“Some of the persons who will be offering themselves for election in the forthcoming elections have been found by legally and constitutionally established fact-finding institutions to have been involved in gross misconduct,” reads the case documents.

SPECIAL VETTING TEAM

Although the advisory opinion on the strict implementation of Chapter Six targets people who have held public office and have been found by the Auditor-General to have embezzled or misused public funds but have now offered themselves for various elective positions, the Nation has learnt that the net will be cast wider to the current serving leaders also.

The Independent Electoral and Boundaries Commission (IEBC) also has a special vetting panel to weed out aspirants with integrity issues. The team is headed by Chrispine Owiye.

According to a source at the electoral commission, the team has been meeting since May 10, and has been forwarding reports to various agencies such as the Ethics and Anti-Corruption Commission (EACC), the Office of the Director of Public Prosecutions (DPP), the Judiciary, the Attorney-General and the Commission for University University Education (CUE), which is validating the authenticity of academic certificates submitted by aspirants.

“Upon receiving feedback from the agencies, we will then write to our presiding officers not to clear candidates who will not meet Chapter Six of the Constitution,” said the source.

Last week, the IEBC, on its official Twitter page, said it will meet with aspirants on Tuesday for a pre-nomination meeting in their respective electoral areas and in Nairobi for presidential candidates.

GUIDING PRINCIPLES

IEBC Communication Officer Andrew Limo has told the Nation that the legal and policy framework for integrity verification of candidates in Kenya is provided for in various laws.

“The commission has formed an Integrity and Vetting Committee that will be tasked with ensuring the candidates for elective office meet educational, moral, ethical and statutory requirements,” Mr Limo said.

Political Parties Act 2011, Article 73(2) of the Constitution sets out the guiding principles on leadership and Integrity. It requires that State Officers be selected on the basis of personal integrity, competence and suitability.

Candidates contesting governor, senator, MP and MCA seats are required to obtain a "certified" clearance certificate from the anti-graft agency under the proposed regulations.

The Human Rights Commission argues that it is critical that the Supreme Court give judicial guidance on the matter to avoid situations where IEBC efforts to obtain crucial information are challenged by the aspirants.

FINAL DECISION

The commission pointed out that information regarding public office holders only comes to the surface when someone goes to court.

It further argued that accessing such information for the taxpayer is difficult and it is critical that the Supreme Court give judicial guidance on the matter.

The court’s decision would be final, with no chance for appeal in what could deal a blow to the political careers of individuals implicated in violence, voter bribery and other electoral malpractices.

When releasing its assessment report on party nominations last week, the KNCHR said it received over 50 complaints touching on some candidates’ ability to serve in public.

“As a commission, we have received petitions challenging the suitability of some of the candidates who won in the primaries,” said the commission’s chairperson Kagwiria Mbogori.

RESPONSIBLE BODIES

Chapter Six Working Group, led by Attorney-General Githu Muigai, earlier said will it leave nothing to chance in this year’s elections in ensuring that Chapter Six if fully adhered to by all aspirants.

“The Chapter Six Working Group will use this election to raise the bar on leadership and integrity and I want the Judiciary to help us weed out elements that we all agree ought not to be on leadership positions,” Prof Muigai said.

Otiende Amollo, the former chairman of the Commission on Administrative Justice (Ombudsman), argues that the implementation of Chapter Six is strictly the work of the EACC and the IEBC.

Mr Amollo, a lawyer, said that right now the IEBC or any other body can stop candidates with integrity issues from vying even if they won in the recent party primaries.