By Peter Opiyo and Alex Ndegwa

With Parliament and Cabinet slowly but unwaveringly relaxing measures that could have raised the bar for those elective offices, attention is slowly shifting to the Judiciary.

This is because despite it being a separate arm of government, the Judiciary enjoys a growing reputation that it is finally firmly on the reform path and is the bastion of progressiveness. But even more importantly, it is the neutral arbiter set out by the Constitution if and when the spirit and letter of the laws promulgated in the 2010 national referendum are betrayed.  

Already, outrage has greeted the Cabinet’s deliberate and systematic removal of stringent measures that should have raised the bar for those seeking leadership positions.

Members of Parliament have removed clauses in several Acts of Parliament ostensibly to shield those with questionable records and it appears only the Judiciary can save the country when the country’s protests turn to it for interpretation and direction.

The MPs have systematically removed provisions in the Elections and Political Parties Act, the latest being an attempt to lower the integrity thresh-hold requiring that all public office seekers be vetted.

Instead of undergoing vetting by established institutions, the MPs now want the threshold to be lowered so that they can only tick ‘Yes’ or ‘No’ on declaration forms to affirm if they have been involved in any malpractice.

In the new order, brought about by the current Constitution, Kenyans expected a watertight law that would herald a new breed of leadership, high on moral standards and clean on the criminality gauge, but the Cabinet has flushed this dream down the drain.

It doesn’t make matters better, for the same politicians whom the law targets, are the ones on whose shoulders the public has heaped their hope of salvation from the watered down Leadership and Integrity Bill (2012) when it comes up for debate in Parliament.

The Bill, tabled in Parliament last week, fails to establish a vetting process for persons seeking election to public office required to enforce ethical and moral requirements spelt in Chapter Six of the Constitution.

Law Society of Kenya (LSK), Transparency International-Kenya (TI-Kenya) and the Commission for Implementation of the Constitution (CIC) have lashed out at the Executive for watering down the Bill and urged MPs and the public to resist this move.

Other avenues

LSK Chairman Eric Mutua explains that the only other avenues to reverse the trend MPs have taken would be resorting to the Judiciary and “people’s power”.

“The public can exert pressure on Parliament to reject the Bill on Integrity, but it would be a tall order because the MPs have a vested interest in the Bill. However, people can still resort to court action,” Mutua advised.

Even though MPs have a chance to amend the Bill to reinstate thorough vetting mechanisms, it is unlikely the MPs would yield to public pressure given their record, especially where their interests are involved.

Further, CIC says the Bill excludes public participation in the vetting process for persons seeking election or appointment to State office and warned these omissions defeat the Bill’s objective to provide “a minimum threshold of election based on personal integrity, competence and suitability.”

LSK argues the Bill has completely been watered down and that it gives blackout to how those facing charges on international crimes can be dealt with. “It says nothing about international crimes and how those facing such charges can be dealt with. It gives a blackout on this aspect,” Mutua says.

On its part, TI-Kenya says the Bill as drafted by the Cabinet fails to outline mechanisms for gauging high integrity amongst State Officers, and calls on Parliament to stand up to the occasion and amend the Bill, in line with the CIC’s copy.

TI-Kenya says the Bill ignored the input by the public and other stakeholders and bears provisions that are fertile grounds for judicial challenge. “This Bill carries with it provisions that are unconstitutional and therefore open to challenge before the High Court,” says TI-Kenya.

Calculated attempt

This move by the Cabinet appears to be a calculated attempt to have politicians evade vetting ahead of the polls. Last year, MPs made useless the law that established the Ethics and Anti Corruption Commission. Then, MPs expunged provisions granting teeth to EACC, including powers to prosecute, before sacking the five directors, which plunged the commission in limbo.

Ironically, in the latest Bill Cabinet removed a mechanism to allow the EACC to prosecute cases related to integrity violations where the Director of Public Prosecutions refuses to prosecute without good cause. EACC is meant to be a bigger player in the vetting of public officers.

CIC says the published Bill is a far cry to the one it forwarded to the Attorney General on July 31 and has urged the public to pile pressure on the Executive and Parliament.

The Bill fails to establish transparent procedures and mechanisms for the effective administration of Chapter Six on Leadership and Integrity.

The Bill processed by CIC contained such measures, tasked EACC as the primary entity for ensuring compliance and emphasized on the need for those seeking elective posts to meet moral and ethical requirements. “The CIC, having considered the published Bill on Leadership and Integrity, is of the opinion that the proposed law is ineffective in implementing Chapter Six of the Constitution and contains clauses that are unconstitutional,” CIC warns.

The team led by Mr Charles Nyachae branded the Bill in its current form “a statement of intent” with no real mechanism of realising that intent. “It is important to note that in the absence of a legislative mechanism for vetting persons seeking State office, Kenyans will be forced to resort to the Courts for appropriate declarations, a process that will be costly, time consuming and which should only be a last resort,” CIC says in its advisory.

The Bill cleared by CIC compelled any person seeking an appointment or election to a State office to obtain from the commission a certificate of compliance with Chapter Six of the Constitution.

The Leadership and Integrity Bill was considered the next major obstacle for MPs ahead of polls.