Politicians placed hurdles in graft war

There was an outcry when the Office of the Director of Public Prosecutions (ODPP) recently suspended prosecution of politicians charged with corruption and instead challenged voters to vet all aspirants at the ballot. The ODPP said prosecuting such leaders would not bar them from contesting but would only make the fight against corruption a campaign tool.

Outrageous, isn’t it? Isn’t man, irrespective of his status, equal in the eyes of the law? Isn’t it defeatist for the ODPP, given its mandate, power and resources, to turn to ‘Wanjiku’ in these hard times for help in executing the agency’s mandate?

But wait a bit. What caged Mr Noordin Haji into the unfamiliar corner? You might be shocked to learn that our political leaders, many of whom also double up as our legislators in both Houses of Parliament, and the county assemblies, actually covered their backs against the strict requirements of Chapter Six on leadership and integrity and barring them from seeking elective office is more often than not an exercise in futility.

Chapter Six prescribes leadership, ethics and integrity standards for persons entrusted with public office. It is a unique innovation targeted at shielding public trust from abuse. It was enacted in the hope that it could reverse the culture of corruption and impunity, clean up our politics and ensure only those who meet the integrity threshold occupy public office.

The Ethics and Anti-Corruption Commission (EACC), for instance, as the premier institution for implementation of Chapter Six, vets candidates for both appointive and elective positions to ensure compliance with Chapter Six of the Constitution. For appointive positions, public officers are supposed to fill self-declaration forms, often referred to as clearance forms, under the First Schedule of the Leadership and Integrity Act, where they answer questions on ethics and morality. 

Once the shortlisting is done, the hiring entities write to the EACC, which in turn shares reports highlighting whether a shortlisted individual is under investigation, has been adversely mentioned, is facing corruption or economic crimes cases or has been convicted.

Government agencies would never hire anyone whose integrity has been so flagged.

Contesting an election

The problem is with the elective positions, where the law, even though still domiciled in the First Schedule of the Leadership and Integrity Act, shifts self-declaration to the Independent Electoral and Boundaries Commission (IEBC).

The IEBC and the EACC, however, work in synergy to ensure that individuals seeking public office through elections are thoroughly vetted on matters of ethics, corruption and economic crimes.

In 2017, for example, the IEBC forwarded to the EACC names of 16,000 individuals who had been cleared by political parties to run after nominations. The EACC flagged about 106 candidates with integrity issues. The IEBC, nevertheless, cleared about 104 of the 106.

The IEBC’s mandate on clearing of candidates, it must be noted, is curtailed by law. Articles 99 and 193 provide that an individual can only be disqualified if, as at the date of registration, he or she is serving a prison sentence of at least six months. 

Elsewhere, the law also provides that one must have exhausted all the appeals processes to be barred from contesting an election.

Removed from office

Two residents of Mombasa County recently raised hopes of resuscitating Chapter Six when they petitioned a High Court in Mombasa, under a certificate of urgency, to have impeached former Nairobi governor Mike Sonko barred from running for the Mombasa governor’s seat in the August 9 elections.

The two petitioners, Ndoro Kayuga and George Odhiambo, wanted the court to declare that a county governor who has been impeached or removed from office for violation of the Constitution or any other law is disqualified and ineligible to hold or be elected into any state office.

However, the petitioners have since changed tune and controversially withdrawn their petition, alleging that Mr Sonko’s impeachment was political in the first place.

There’s still hope, though. The High Court in Nairobi has also been approached by a group of non-governmental organisations in a petition revolving around Chapter Six and a host of other articles in the Constitution.

The group wants, among other reliefs, a declaration that the EACC has the primary and final mandate to vet and clear candidates for purposes of Chapter Six.

While we can’t comment on the merits of the matter, it must be noted that these petitions bring to the fore constitutional questions that have rendered ineffective EACC and the IEBC’s mandates to, respectively, vet and bar candidates with integrity issues from vying for public office. 

This has, consequently, allowed all manner of characters into public service.

Mr Wanjala is a freelance journalist. He comments on legal and governance issues. [email protected]; @DavidWanjala75