The anti-corruption watchdog Thursday stepped up the pressure to have 241 aspirants facing integrity probes barred from contesting in the forthcoming General Election.
However, efforts by the Ethics and Anti-Corruption Commission (EACC) were opposed by the electoral commission, which insisted it cannot be directed by other agencies on who to clear or not to clear for political office.
During a seven-hour hearing at the High Court in Milimani, the EACC, the Director of Public Prosecutions and civil society groups united against the Independent Electoral and Boundaries Commission (IEBC), which was cast as the weak link in efforts to bar tainted individuals from the ballot.
IEBC, which is chaired by Mr Wafula Chebukati, was accused of neglecting its obligation to enforce provisions of Chapter Six of the Constitution on leadership and integrity, but it pushed back, saying, every institution must stick to its line of work.
In its submissions, EACC portrayed IEBC of allowing criminal suspects, convicts with pending appeals and persons with integrity questions to vie for public seats.
The EACC, whose chief executive is Mr Twalib Mbarak, wants 241 aspirants for Governor, Senate, National Assembly and County Assembly posts it recently flagged over allegations of corruption and economic crimes barred from the elections.
Facing graft charges
The anti-graft watchdog lamented that some of the candidates it wanted barred in 2017, but who IEBC allowed to vie, were later arrested and are in court facing graft charges.
IEBC had submitted a list of 21,863 aspirants to EACC for integrity verification, and the anti-graft reported adverse findings on 241 of them.
“EACC considers these persons to have fallen short of the moral and ethical standards stipulated for election to public office. EACC hopes that IEBC will make appropriate decisions guided by Constitutional Values and public interest,” EACC said in a press statement on June 1 when it submitted the report to IEBC, a position it buttressed in court yesterday.
However, IEBC subsequently indicated only Mr Mike Sonko, who was impeached as Nairobi governor and now wants to run for Mombasa governor, would be barred from contesting.
IEBC chairman Wafula Chebukati has said the commission’s hands are tied over aspirants still on trial or who have appealed against their sentences.
Exposing Kenyans to bad governance
But Thursday, EACC insisted by allowing persons who have active criminal and corruption cases to vie for public office, IEBC was exposing Kenyans to bad governance.
EACC argued the legal principle of “presumption of innocence until proven guilty” shouldn’t be used to give a free pass to aspirants with questionable integrity.
According to the EACC, the principle does not apply to political aspirants and those convicted of criminal offences, irrespective of their pending appeals or reviews, should be locked out of the elections.
“The Constitution does not envisage conviction and subsequent exhaustion of all appellate processes as the sole applicable criteria for eligibility to contest for public office,” EACC through lawyer Phillip Kagucia told Justices David Majanja, Chacha Mwita and Mugure Thande who will decide the fate of dozens of political aspirants.
Serve the greater good
Mr Kagucia added that nobody has unfettered right to leadership and that the limitation of the right to hold public office is intended to serve the greater good by minimising the risk of bad governance.
EACC said Article 99(3) and 193(3) of the Constitution, which says a person vying for MP or MCA seat is not disqualified unless all possibility of appeal or review of the relevant sentence or decision has been exhausted, cannot be used to clear the convicts.
“To illustrate the absurdity of interpreting Article 99(3) and 193(3) literally, one only has to consider the fate of an appointed State officer, who is automatically deemed unfit to continue serving during the pendency of investigations or prosecution. The said officer is required to be suspended from office with no consideration for a finding or conviction, which standard is not considered for elective positions,” Mr Kagucia said.
He added that the EACC applies a sufficient factual test before coming up with the list of unsuitable aspirants.
Mr Kagucia urged the court to interpret the Constitution to mean that convicts and persons facing active criminal cases cannot vie for public office.
Out on bond
Among those cleared by IEBC is Sirisia MP John Waluke who was slapped with a lengthy prison sentence upon conviction for corruption. Mr Waluke, who is defending his seat on a Jubilee ticket, is out on bond after he appealed against the sentence.
The case involves nine petitions filed by civil society groups and different individuals opposed to impeached persons like Mr Sonko, convicts like Mr Waluke and those with pending cases like Embakasi North MP Mwangi Gakuya, offering themselves for public office.
Thursday, EACC’s argument got the backing of the Director of Public Prosecution and of the civil society groups.
“Persons charged with criminal offences are not suitable to hold public office. In the eyes of the public, such a person is viewed as corrupt. You must protect Kenyans from persons who seek office when they have moral questions hanging on their shoulders. Persons seek appointment yet they do not meet the integrity test,” the DPP said through State prosecutor Alexander Muteti.
“The IEBC is bound to act on the information and advise given by EACC, and it cannot ignore the materials submitted. Although a person has a right to contest for a political seat, the right is not absolute; it is subject to limitation,” Mr Muteti added.
However, the polls agency argued that findings by EACC on integrity and suitability of political aspirants are not binding, insisting that the anti-graft agency is not a quasi-judicial body but an investigative body.
‘EACC is not binding’
“The EACC cannot direct IEBC on how to exercise its mandate. IEBC is not a conveyor belt to receive materials and act as recommended. The report of the EACC is not binding. IEBC is an umpire and has a duty to promote constitutionalism and promote sovereignty of the people. It is not under direction or authority of anyone,” said the IEBC lawyers Charles Mwongela, Edwin Mukele and Zephania Yego.
They insisted that the polls agency has not neglected its duty and that efforts to enforce the Elections Code of Conduct were recently frustrated when the High Court barred it from investigating Murang’a Woman Representative Sabina Chege.
They also said the independence of the IEBC must be respected by the other government agencies.
IEBC said even the tainted politicians deserve a fair hearing, adding, its decision to either allow or disallow an aspirant cannot be bound by material submitted by investigative agencies such as EACC.
Impeachment is final
The two commissions, however concurred that persons impeached from a public office are ineligible to vie in subsequent elections.
The Attorney-General Kihara Kariuki also said such persons cannot be allowed to contest for a public seat even if they have a pending appeal against the impeachment.
“Impeachment is final. Looking at the wording of Article 75 of the Constitution, the decision is definite. IEBC does not need to consider whether you have an appeal or not,” said the Attorney-General’s representative.
Justice Majanja said they’ll retreat to read the submissions and write a judgment.
“The judgment will be delivered on a date to be notified to all parties. We are also aware the IEBC is preparing to print ballot papers,” he said.