Playing to the gallery only kills the purpose of integrity principle

No question is as vexing in Kenya’s political discourse as the issue of leadership and integrity and the role it ought to play in the electoral process.

There is no doubt that framers of the 2010 Constitution intended to place a higher threshold on leadership than had historically been the case. However, unlike the appointment process where the parameters of how the integrity considerations would be applied were fairly clear, the Constitution left enough room for conjecture on the application of the integrity standard in elections for this to be a political minefield.

The matter was not made any easier by the passage of a watered-down Leadership and Integrity Act in 2012. The matter became murkier in 2013, our first elections after the passage of the Constitution, when it was held hostage by the then ongoing trial of President Uhuru Kenyatta and his deputy William Ruto at the International Criminal Court. It became impossible to hold a rational conversation on the matter when it looked like the detractors of these candidates were using the integrity argument to get them out the ballot. When the matter was taken to court and the court made its finding primarily based on the presumption of innocence, that issue appeared to have died a natural death. But numerous corruption scandals at the two levels of government in the last five years have forced this conversation on us again.

This years’ election would have been the most suitable to agree on a rational way forward but it would appear this is not going to occur. What militates against it this season is that the issue has coalesced very late in the day, thus becoming hostage of a political process where its application would impact identifiable parties and candidates at the tail end of the electoral process. What should have been done is to resolve the issue at the level of principle long before the nominations even commenced. With all due respect to the KNHCR, they should have filed the advisory opinion request at the Supreme Court in 2014 not on the eve of the elections. The principles would then have been clearly enumerated by the court long before the electoral cycle. To try and enforce unclear rules two months to an election just pollutes an otherwise important discussion.

My view then is that at this point, we can only apply the strict letter of the Constitution. There are currently two constitutional conditions on which one can be barred from seeking elective office. Firstly, if one has been convicted and sentenced to six months or more and is not undergoing through appeal. That is the condition that most Kenyans are familiar with. Unknown to many Kenyans, the Constitution also bars people who have been found through a legal process to have breached Chapter 6, abused public office or misused public money as long as they have exhausted all avenues for review of the finding.

Criminal standard

It is this latter window, which does not require criminal guilt, that requires clarity and reinforcing. Such strengthening would ensure that the process of determining culpability, the applicable institutions and the nature of the legal processes through which these findings can be established, and the mechanisms through which normal constitutional protections, including fair administrative action will be applied, are clearly enumerated in law. That is precisely what the watered-down Leadership and Integrity Act had sought to do.

In the absence of such a process, what we are left with is the unhelpful criminal standard. The unacceptable alternative is a process that is opaque, open to abuse and can be captured in the normal Kenyan way to reach nefarious objectives.

While we cannot as a nation ignore the constitutional decree for leaders of integrity without paying a heavy price on the nation’s psyche and status, we must, however, ensure that the integrity net when eventually thrown into the sea captures only those who have violated the integrity principles based on due process. If we are reckless, playing to the gallery, the truly guilty will escape the net using the same language as the innocent, to the detriment of the nation.

—The writer is an advocate of the High Court of Kenya