Let impeached governors run
Former Nairobi Governor Mike Sonko and Fomer Kiambu Governor Ferdinand Waititu outside the Anti-corruption at the Milimani Law Courts Nairobi on Tuesday, November 16, 2021 when they faced corruption charges.
The Independent Electoral and Boundaries Commission (IEBC) has directed returning officers not to allow impeached governors to vie in the elections, citing Chapter 6 of the Constitution, on leadership and integrity.
A contestable aspect of the directive relates to the IEBC’s mandate. Article 79 of the Constitution, which establishes the EACC, makes it responsible for ensuring compliance with, and enforcement of, the provisions of Chapter 6. The IEBC should stick to its role of conducting and supervising elections.
More pertinent is its justifiability. First, impeachment is chiefly a political process. Both Parliament and county assemblies are dominated by party power struggles with legislators in many instances used to rubber stamp the Executive’s decisions.
As such, a governor’s impeachment may not so much be a reflection of their character, as an indication of their political allegiance. It is in this light that Article 75(3), which locks state office doors to “persons dismissed or otherwise removed from office” for contravening integrity clauses, should be read.
Secondly, electing leaders is the sovereign prerogative of the people that is exercised directly. It is not coincidental, but by design, that this is expressed in Article 1, the Constitution’s opening clause. It shows the primacy of the electorate’s power in the supreme law’s architecture. Thus, if a person satisfies the constitutional and statutory requirements to vie for office, leave the people to decide. In any case, the impeachment will be common knowledge.
Unfortunately, a candidate’s tainted image does not necessarily deter the Kenyan voter; it might even make the contestant more popular. Some leaders have won their political seats at the first attempt after exiting their Cabinet office in disgrace. In 2013, Jubilee Party’s Uhuru Kenyatta and William Ruto won the presidency while facing crimes against humanity charges at the International Criminal Court (ICC). But that is the price to pay for democracy.
Mr Arori is an advocate of the High Court of Kenya. [email protected].
