By Oscar Plato
The presumed bipartisan political interventions by the west came a cropper with the recent remarks by US Secretary of State Hillary Clinton on post-election violence suspects Uhuru Kenyatta and William Ruto’s bids for State House.
However, I assume she is not conversant with our Katiba. Article 137(1) of the Constitution elaborates on the qualifications for nomination of a presidential candidate; one must be a citizen by birth, qualifies to stand for election as MP, is nominated by a party or is an independent candidate; and is nominated by not fewer than 2,000 voters from each of majority of counties.
This provision of the Constitution, whether loosely or strictly, will tell you Uhuru and Ruto are qualified to be presidential candidates in the General Election and can only be bared if either of them owes allegiance to a foreign State or is public officer, acting in any State or other public office.
But Article 1 of the Constitution states that all sovereign power belongs to the people of Kenya and they may exercise this power either directly or through their democratically elected representatives. Attempts to deny any Kenya an opportunity to offer himself for election is an affront to their sovereignty.
The Constitution guarantees political rights. Article 38 gives every citizen freedom to make political choices, the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors.
Although, Article 73 (Chapter 6) of the Constitution states that public offices must be exercised in a manner that “brings honour to the nation and dignity to the office,” Article 99(2), (3) and Article193 (2)(3) of the same Constitution guarantee Ruto and Uhuru the right to contest under the Bill of Rights.
It says even if a person has been convicted of any crime and imprisoned for a period of more than six months but has not exhausted all possibilities of appeal or review of the sentence or decision, he/she cannot be disqualified from contesting for any elective position.
Therefore, the likes of Hillary Clinton, US Secretary of State, are wrong and misleading the public by deliberately misinterpreting the Constitution to insist that Uhuru and Ruto have no Constitutional right to contest positions in the General Election.
Our Constitution is clear in Article 79 that only the Independent Ethics and Anti-Corruption Commission is mandated to ensure compliance and enforcement of Chapter Six on issues relating to leadership and integrity. Additionally, for this independent commission to do so, Parliament must enact legislation establishing procedures and mechanisms for the effective administration of this chapter as per Article 80 (a, c and d).
So far, Parliament has not done so and, therefore, the commission, which has the sole mandate to enforce Chapter Six, cannot purport to bar anyone from running for any position. However, subsection 3 of Chapter 99 expressly overrides the provisions of Section 2(h), which makes clear any violation of the chapter on Leadership and Integrity by declaring the assumption of innocence until one has exhausted all avenues of appeal.
These are ‘special’ provisions of the Constitution and are superior to ‘general’ ones including the yet to be passed Bill on Ethics and Integrity and the electoral law because any Act of Parliament that is inconsistent with the Constitution is null and void to the extent of the inconsistency.