Mutilated Integrity Act is a law of the jungle, giving politicians cause to behave with impunity

The misconduct exhibited by Nandi Hills MP Alfred Keter and his nominated counterpart Sonia Birdi — insulting and intimidating public officials at the Gilgil weighbridge — is a manifestation of our collective political greed, say political and legal experts.

The two were captured on video insulting public officials and invoking President Uhuru Kenyatta’s name to have a lorry detained at the weighbridge released.

Instances abound where public officials have behaved badly, causing disrepute to their offices.

Take the brandishing of guns by Nairobi Senator Mike Sonko’s security guards at Lee Funeral Home, Nairobi, and the mayhem on the floor of the National Assembly during the acrimonious passage of the Security Laws (Amendment) Act.

Other cases include the fracas in Makueni and Machakos counties, and Nairobi Governor Evans Kidero’s quarrel with county women rep Rachel Shebesh in full view of television cameras.

In 2012, the Grand Coalition Cabinet and Parliament watered down the Leadership and Integrity Act that operationalises Chapter 6 provisions of the Constitution.

This is an effort by politicians to safeguard their interests, including paving the way for then Deputy Prime Minister Uhuru Kenyatta and William Ruto to contest the two highest political offices in the land while facing crimes against humanity charges in The Hague over their alleged roles in the 2007/8 post-election violence.

Before then, former Deputy Chief Justice Nancy Baraza had fallen on the anvil of the Constitution when a tribunal appointed to investigate her conduct after a widely publicised altercation with a security guard at Village Market on December 31, 2011, sent her home for breach of Chapter 6 provisions.

By subverting the provisions of Chapter 6, the chickens have come home to roost. Haranguing Mr Keter without Parliament amending the Leadership and Integrity Act will not solve the problem.

Lawyer Anthony Oluoch says the rain started beating on Kenyans when a rogue legislature and selfish politicians enacted laws that watered down the requirements of Chapter 6 of the Constitution.

“It meant that we went to elections with leaders whose characters and sources of wealth could not be questioned,” he said.

Passage of the Leadership and Integrity Act—which failed to capture the aspirations of Kenyans as expressed in Chapter 6 of the Constitution—drew condemnations from rights groups and constitutional commissions.

The Commission for the Implementation of the Constitution (CIC) even challenged the constitutionality of the Act as anticipated by Article 80 regarding legislation on leadership.

“Unfortunately, the court did not agree with us,” CIC chairman Charles Nyachae said.

The CIC had argued that the law eventually enacted was “not only ineffective in implementing Chapter 6 of the Constitution, but also contains clauses that are unconstitutional”.

The CIC pointed out critical grounds for challenging the law: First, the law that was eventually enacted was not a reflection of various proposals and memorandums received from the public.

Second, CIC had argued that the law failed to establish a vetting process for persons seeking election to public office, while ensuring that they conform to the requirements of Chapter 6 and the ethical and moral requirements necessary under Article 99.

“This is a key expectation of the Bill (now an Act) whose objective is to provide a minimum threshold for elections based on personal integrity, competence and suitability. (It) fails, as a fundamental requirement, to allow for public input and participation in the vetting process for persons seeking election or appointment to State office,” CIC had said.

The commission was also of the opinion that the law watered down key provisions of the Constitution, in particular Article 77 which deals with gainful employment and Article 73 on Responsibilities of Leadership.

BREACH OF CAPTER VI

The fourth failing of the law, as pointed out by CIC, was that it did not provide for a mechanism that would allow the Ethics and Anti-Corruption Commission (EACC) to prosecute cases of breach of Chapter Six where the Director of Public Prosecutions refuses to prosecute.

“The Constitution only provides the framework but it would have been helpful to have strong mechanisms for enforcement which, unfortunately, Parliament denied us. The CIC’s position has been that the Leadership and Integrity Act did not realise the threshold of the Constitution,” said Kamotho Waiganjo, a CIC commissioner.

Similar opposition had come from Transparency International (Kenya) and the Africa Centre for Open Governance (Africog).

“The content that Kenyans hoped for in law was hollowed out and the Keter matter, as well as the behaviour of the political class, is typical of the way we have come to deal with public issues,” Transparency International (Kenya) executive director Sam Kimeu said.

According to Mr Kimeu, the grand coalition cabinet under President Mwai Kibaki and co-principal Raila Odinga must share the blame as it removed many proposed provisions in the Leadership and Integrity law.

“We ended up establishing standards for integrity for public officers that were higher than the standards required for state officers. That was not the intention of Kenyans who wanted to raise the bar for state officers,” Mr Kimeu added.

Mr Oluoch says that while EACC is expected to deal with cases of breach of leadership requirements for public officials, Parliament still holds a leash.

“EACC is a public relations gimmick, but even with the powers it has, it should be able to rein in rogue leaders,” said Mr Oluoch.

Mr Kimeu too holds that despite the Grand Coalition cabinet and the 10th Parliament watering down the Leadership and Integrity Act, EACC retains a lot of power to deal with errant public officials.

Before the March 2013 General Election, aspirants were required to sign to the leadership and integrity requirements by EACC. 

“Unfortunately, these forms, just like the wealth declaration forms, are just gathering dust on EACC shelves. What is happening is a challenge to EACC to chart a new path and to act boldly as per the framework in the Constitution,” said Mr Kimeu.