Loopholes some candidates might exploit over integrity

Many Kenyans are dumbfounded by the Independent Electoral and Boundaries Commission’s decision to give a clean bill of health to some candidates, who are suspected of having committed, or who are known to have been involved in wrongdoing.

In theory, the IEBC is supposed to weed out people who are considered unfit for public office because they have demonstrated lack of integrity when carrying out their duties as public or State officers, or in their professional lives.

It is supposed to uphold Chapter 6 of the Constitution on leadership and integrity that states that a state officer should bring honour and dignity to the office.  But is clearly not doing this.

SELF-ASSESSMENT

Take, for instance, the form that candidates in the August poll were expected to fill before they were cleared by the IEBC.

This self-assessment asks questions such as: “Have you engaged in any form of dishonesty in the conduct of public affairs?” and “Have you ever engaged in wrongful conduct whilst in the furtherance of personal benefit?”

Of course, every candidate (particularly those who have made careers out of lying and cheating) will tick NO to these questions; worse, the IEBC takes them at face value.

While Chapter 6 of the Constitution does not spell out what integrity actually entails (which is its biggest weakness), recent events have shown that neither the IEBC nor the two main political parties are keen to define integrity too explicitly, which has allowed all manner of known or suspected thugs, thieves and liars the licence to vie for political office.

MIRED IN LEGALITY

Part of the problem with enforcing the integrity chapter of the Constitution is that the issue is mired in legality and obfuscation, which candidates vying for political or public office fully exploit.

For instance, when some individuals and civil society questioned the suitability of Mr Uhuru Kenyatta and Mr William Ruto to run for political office in 2013, given that they had been indicted by the International Criminal Court, the High Court ruled that it had no jurisdiction to determine the suitability of candidates vying for presidential elections.

That this was the job of the IEBC, and that if a dispute regarding suitability of these candidates did arise, it could only be resolved by the Supreme Court.

DUBIOUS CHARACTER

Unfortunately, this set an unfortunate precedent and emboldened dubious characters (some of whom have even been convicted in the past for criminal offences) to stand for office.

The High Court, in this and other cases, has also argued that if criminal investigations against an individual are still open or a criminal case against an individual has not been concluded, then that individual should be presumed innocent until proven guilty, and should, therefore, be free to vie for political or public office.

One of the problems with enforcing the integrity chapter of the Constitution is a poorly drafted Leadership and Integrity Act (2012).

THREE REQUIREMENTS

It attempts to define integrity, but fails miserably because it focuses mainly on three requirements for public or State officers, two of which are peripheral to the integrity issues facing Kenya: one is the declaring of “gifts” worth more than Sh20,000 and the second is not operating a foreign bank account, unless compelling reasons are given for doing do.

The Act talks of conflict of interest, but says nothing about convicted or suspected criminals running for public office.

 It does not say that individuals cannot stand for public office if they have been accused of engaging in corruption, hate speech or abuse of authority or if they are facing criminal charges. 

RELY ON THE LAW

The Act could have expressly stated that such individuals can only stand for public or State office after their cases they are facing have been dismissed or concluded by a court that found them to be innocent.

But must we rely only on the law or  the courts to determine integrity?  In other countries, negative public opinion or personal shame are often enough to force people to stand down or not run for public office.

Officials voluntarily resign when their integrity is questioned or when their reputations are sullied by scandal.

In the United States, even Michael Flynn, the former National Security Adviser to the dysfunctional Donald Trump administration, resigned when it was revealed that he misled top White House officials about his links to Russia. No court of law had ruled that he was unfit for public office; the court of public opinion did.

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