By Wahome Thuku

If the test of integrity as set by the courts is anything to go by, then it will be a major hurdle for public office seekers including politicians. The issue is more than having or not having a criminal case pending in court as Mumo Matemu now realises.

Matemu was at various times a Legal Officer and Acting Company Secretary of the Agricultural Finance Corporation (AFC), a parastatal. While there, he was allegedly implicated in various shady deals that caused AFC to lose millions of taxpayers’ money.

 But in December 2011, Matemu was nominated, and approved by Parliament and subsequently appointed by President Kibaki to head the reconstituted Ethics and Anti-Corruption Commission.

 Despite having been described by the Departmental Committee on Justice and Legal Affairs as lacking “passion” for the job, Parliament still cleared him and two others. The appointment was gazzetted by the President on May 11.

A civil society group, Trusted Society of Human Rights Alliance filed a petition at the High Court challenging the appointment. They named the Attorney General, Justice Minister and Director of Public Prosecutions as respondents and Mr Matemu as interested party.

The organization sought a declaration that the process and the manner in which he had been appointed was unconstitutional, that he was not a fit and proper person with due regard to honesty and integrity hence the appointment would be inconsistent with the Constitution, therefore, invalid. They asked that the appointment be set aside.

Through lawyer Gordon Ogola, the petitioner argued that Parliament and the Executive abdicated their constitutional duty to pick a person of integrity as set out under Chapter Six of the Constitution.

Appointment process

The lawyer said parliamentary proceedings indicated legislators were not interested in Matemu’s integrity.

Ogola said the file was still open hence it was not prudent to have a person facing fraud investigations to head such an important commission.

The AG and Justice Ministry argued the petitioner did not have legal standing to file the petition as they had not disclosed whom they were acting on behalf of. They argued that the organization had not disclosed the constitutional provisions that had been contravened.

According to the AG, the petitioner had ample opportunity to challenge the appointment before it was approved by Parliament. The proper process for the appointment had been followed and reopening the matter in court would be a contravention of the doctrine of separation of powers.

The DPP argued that he should not have been enjoined in the case as he did not take any role in the appointment.

Matemu’s lawyer Waweru Gatonye said the proper process for appointment was followed and there was ample opportunity for the public to challenge it.

Parliament had taken all issues into consideration before approving the appointment, Gatonye submitted.

 Matemu also denied he participated in the approval of any loans by AFC. He stated the dispute between RVAC and AFC was settled in court hence the issues raised by the petitioner having been laid to rest could not be revived.

 “Parliament was best placed to judge the integrity of my client and with all the information presented, it decided he was fit for office,” the lawyer argued.

 Dealing with the issue of integrity, the court analyzed Chapter Six of the Constitution, which sets the principles on leadership and integrity requirements of public officials. Article 73 requires that State officials be selected “on the basis of personal integrity, competence, and suitability.”

“Kenyans were very clear in their intentions when they entrenched Chapter Six and Article 73 in the Constitution. They were singularly aware that the Constitution has other values such as the presumption of innocence until one is proved guilty,” the judges said. “Yet, Kenyans were singularly desirous of cleaning up our politics and governance structures by insisting on high standards of personal integrity among those seeking to govern us or hold public office. They intended that Chapter Six and Article 73 will be enforced in the spirit in which they included them in the Constitution.”

The judges went on: “The people of Kenya did not intend that these provisions on integrity and suitability for public offices be merely suggestions, superfluous or ornamental; they did not intend to include these provisions as lofty aspirations. Kenyans intended that the provisions on integrity and suitability for office for public and State offices should have substantive bite.”

Vital analysis

 But the bigger question was, when will the Court declare that an appointee or nominee to a State or Public Office as lacking integrity or is unsuitable for the position?

 According to Black’s Law Dictionary, “integrity, as occasionally used in statutes prescribing the qualifications of public officers, trustees, etc, means soundness of moral principle and character, as shown by one person dealing with others in the making and performance of contracts, and fidelity and honesty in the discharge of trusts; it is synonymous with “probity,” “honesty,” and “upright”.

“To our mind, therefore, a person is said to lack integrity when there are serious unresolved questions about his honesty, financial probity, scrupulousness, fairness, reputation, soundness of his moral judgment or his commitment to the national values enumerated in the Constitution. For purposes of the integrity test in our Constitution, there is no requirement that the behavior, attribute or conduct in question has to rise to the threshold of criminality. It, therefore, follows that just because a person has not been convicted of a criminal offence is not dispositive of the inquiry whether they lack integrity or not,” the judges concluded.

Matemu faced unresolved questions about his integrity. Yet the nature of the job was that as head of the commission he would be expected to investigate the very same allegations against him.

 “It requires no laborious analysis to see that this state of affairs would easily lead Kenyans to question the impartiality of the commission or impugn its institutional integrity altogether. In our view, this makes the Interested Party unsuitable for the position,” the judges said.

 They held the appointment was unconstitutional and set it aside with no costs to any party.

The writer is a court reporter.

Email:iwahome@standardmedia.co.ke