Is public vetting of holders of State offices a farce?

The vetting and clearance of politicians with integrity issues for elections has come into sharp focus after the impeachment of governors Mike Sonko (Nairobi) and Ferdinand Waititu (Kiambu) — with both politicians being declared unfit to hold office over integrity issues.

Mr Waititu, who was impeached in January, and Mr Sonko, who was shown the door by Senate last week, were both flagged by the office of the ombudsman in 2012, with then head Otiende Amollo saying the two should not be cleared to hold public office.

“In 2012, as ombudsman of the republic, I determined that Governor Waititu and Governor Sonko among 34 others, were unfit to be cleared for elections for factual integrity issues. The IEBC, and the people, ignored. Let’s just say, facts are stubborn!” Dr Amollo said in a tweet on Friday.

In the list of 36, Dr Amollo’s office named Mr Sonko, Mr Waititu, 12 senior government and State corporation officials who have been convicted for abuse of office, and 22 commissioners of the now defunct Electoral Commission of Kenya who were accused of mismanaging the 2007 General Election, leading to the deaths of more than 1,133 people with at least 350,000 others displaced.

But despite this, Mr Sonko and Mr Waititu went on to hold public office, with the former being elected Senator in the 2013 polls before romping to victory as Nairobi Governor in 2017.

Mr Waititu lost his bid to be Nairobi governor in 2013, but was elected Kabete MP in a by-election in 2016, before he took Kiambu by storm as its second governor in 2017.

IEBC’s lack of teeth

The case of Mr Waititu and Mr Sonko, who were cleared to run for office despite warnings by ethics agencies, just goes to show the lack of teeth of the Independent Electoral and Boundaries Commission (IEBC) — which is now mandated to vet and clear candidates on the advice of other agencies in this important exercise.

In a meeting with a Senate committee in October, IEBC said its hands are tied, as the law only allowed it to bar those who have been convicted for a sentence exceeding six months.

This means politicians facing corruption, hate speech, incitement and other cases may still vie for political seats in 2022.

“IEBC can only prevent someone from vying if they have been convicted in a court of law of a minimum sentence of six months and above. We do not have any other guideline that can stop someone from contesting, and we effectively maintained this position. We will not be involved in mob lynching of people, we will follow this position ad live with it,” IEBC Commissioner Prof Abdi Guliye told the Senate Cohesion Committee in the October sitting.

Abuse of State office

But lawyer Steve Ogolla argues that once one has been found to have violated the Constitution and abused public office, then they cannot hold any elective position.

“The question then is, has governor Sonko been found to have been in breach of the Constitution and to have abused State office? The answer is yes. That finding has been made twice by the County Assembly and the Senate. As a consequence, he is not permitted to hold any public or State office,” says Mr Ogolla.

High Court Advocate Thomas Maosa agrees with Mr Ogolla, saying no court can take Mr Sonko back to office as under the doctrine of separation of powers, there is no avenue for appeal after Senate sealed his fate.

“He should have arrested the matter at the county level. Senate is an oversight body for ratification of what the county did. A court cannot take him back to office even if the swearing-in is delayed,” said Mr Maosa.

Chapter Six

Chapter Six of the Constitution on Leadership and Integrity makes it clear that a state officer kicked out for abuse of office is barred from holding any other state office.

Article 180 (2) makes it mandatory that to be eligible for election as county governor, a person must be eligible for election as a member of the county assembly.

Article 193 (2g) states that a person is disqualified from being elected a member of a county assembly if the person has been found, in accordance with any law, to have misused or abused a State office or public office or to have contravened Chapter Six.

“A person who has been dismissed or otherwise removed from office for a contravention of the provisions specified in clause (2) is disqualified from holding any other State office,” Article 75(3) states.

Constitutional lawyer Bobby Mkangi adds that even being appointed to a public or State office will be a tall order as that can be challenged in court on the basis of Article 75(3).

“The clearing institutions will disbar him should he choose to run for an elective post. Going to court can only give him temporary relief as he fights for the courts to overturn the decision arguing that he was removed in a largely political process subverting his rights.”

Since 2010, 824 high-ranking officials in government including Cabinet secretaries, governors, and members of Parliament have been arraigned in corruption-related cases.

Access to office

Director of Public Prosecutions Noordin Haji celebrates some of the cases as momentous, including that of Samburu Governor Moses Lenolkulal, where access to his office was limited by the court. The same later happened to counterparts Mike Sonko, Okoth Obado (Migori) and Muthomi Njuki (Tharaka Nithi).

This also includes the conviction former Eldoret South MP Peris Simam in 2016, and that of Sirisia MP John Waluke’s conviction in June — a 67-year sentence handed to him over a Sh297 million maize scam — setting what was a historic win against graft in recent history.

Kenya’s attempt to enforce integrity laws started in the 2017 polls when the Ethics and Anti-Corruption Commission (EACC) tried to bar 106 politicians facing graft cases — 11 vying for governor, one for senate, two for woman representative, 13 for MP and 14 for MCA. This, however, was shot down after IEBC said it could only stop them from vying if they were convicted and had exhausted all avenues of appeal.

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