Supreme Court fails to interpret integrity law

Human Rights activist Okiya Omtata with Advocate Edward Ambala at Milimani Law Courts. [File, Standard]
A case seeking interpretation of the integrity law, how it should be applied on candidates standing for election for political offices, has been dismissed.

The Supreme Court threw out the case yesterday.

Kenya National Human Rights Commission (KNHRC) had wanted the apex court to rule whether a candidate should be barred only if he has a criminal conviction, or one can be barred if he has merely been mentioned in a corruption scandal, without necessarily having been convicted.

In a split decision, where two judges dissented, the apex court ruled that it could not hear the advisory opinion sought by KNHRC on how to implement Chapter Six of the Constitution on leadership and integrity.

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The assenting judges said this is because there was a similar suit before the High Court.

The integrity question has been a thorn in the country's flesh, with many elected leaders being mentioned in economic crimes.

KNHCR had asked the court to rule whether persons found by the Auditor General to have been responsible for loss of public funds should be allowed to vie for political posts.

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The commission raised a total of 14 issues it wanted the apex court to determine.

 The commission had also asked the highest court in the land to interpret whether the test for integrity is stronger than the test for conviction of criminal offences.

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The other question that KNHRC had urged the court to determine was whether the integrity question supersedes a person’s right to offer themselves for an elective post.

The Supreme Court was also urged to interpret whether a person who failed to safeguard public funds while in office can be allowed to vie.

Candidate's suitability

KNHRC also wanted to know who between Independent Electoral and Boundaries Commission and investigative agencies should investigate and determine a candidate’s suitability to vie.

KNHRC argued that the Appeal Court and the High Court have differing interpretations on how to implement the integrity chapter.

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Yesterday, activist Okiya Omtatah urged the top court to dismiss the case, arguing that he had a similar one before the High Court.

Five judges agreed with Mr Omtatah that the KNHCR case had similarities with the case he filed in 2017.  

Chief Justice David Maraga, his deputy Philomena Mwilu and Justices Smokin Wanjala, Njoki Ndungu and Jackton Ojwang dismissed the case.

“In view of Article 165 of the Constitution, the High Court is the court of first instance with regard to jurisdiction for interpretation and application of the Constitution and that court has already been moved," the judges said.

"Guided therefore by these principles, and in exercise of our discretion, we decline to exercise our jurisdiction. This reference is sub-judice and this court will not usurp the High Court’s jurisdiction.”

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Justices Isaac Lenaola and Mohamed Ibrahim were the minority voices. They argued that the Supreme Court should proceed with the case since the questions it was being asked to determine were of great public importance.

The two judges said Omtatah’s case was filed as a result of the 2017 elections, while the one by KNHRC was not a litigation dispute.

According to Lenaola, there has been challenges in implementing Chapter Six since it is solely pegged on "traditional integrity" (having no criminal conviction).

He said the time is ripe for the judges to give clear direction on what is the benchmark for a suitable candidate.

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