IEBC must ensure only candidates who pass credibility test vie for polls

By Ndung’u Wainaina
The August 4, 2010 civilian coup is proving effective slowly but steadily. In a democratic republic, it is the will of the people that is paramount and becomes the basis of the authority of the Government.

A voter is first a citizen of the country and, apart from statutory rights, has fundamental rights conferred by the Constitution. Members of a democratic society should be sufficiently informed so that they may cast their votes intelligently in favour of persons who are to govern them correctly and democratically.

The right to vote would be meaningless unless the citizens are well informed about a candidate’s history. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means to cleanse democratic governing system and to have competent legislatures.

The full disclosure of information about the candidate would facilitate and augment the freedom of expression both from the point of view of the voter as well as the media through which the information is publicised and openly debated.

The law and Kenyan people are on the side of the Independent Electoral and Boundaries Commission (IEBC). The strong message is out: No turning, only people of integrity and reputation beyond reproach are to be found in Parliament.

Furthermore, the direct accountability of those administering public services has become ever more important as the Government implements reforms and transforms the delivery of public services.

The credibility of candidates for elective positions is as important as the process itself. The electorate tends to be informed, rather belatedly, of the criminal character of their representatives once they have been elected with no recourse at their disposal.

This has direct implication not only on the quality of services, laws and policies they potentially receive from such candidates once elected to office but also their fundamental right to proper information under the Constitution.

The IEBC, just like in other established jurisdictions, has a central role in reversing this trend and guaranteeing the electorates’ fundamental right to information about the candidates before elections.

The IEBC has clear legal backing to enforce this principle and ensure candidates for elections meet the highest credibility test including their criminal history and financial probity. In fact, the law allows the IEBC some latitude such that the candidates can be obligated to provide this information under oath.

As part of accountability mechanisms expected of the IEBC, this information should then be publicly displayed to the electors well in advance prior to elections. Article 35 of the Constitution on the right to information guarantees this basic idea of electors being seized of adequate information, including criminal and financial history of the candidates, in exercising their freedom of choice as anticipated under article 38 (2) and (3).

This information is pertinent to help the voters make informed decisions on the candidates.  Though rarely admitted, it is a fact that previous conduct of the candidates informs their actions once elected.
It would therefore be reasonable, within the meaning of article 38 (3) (3) of the Constitution, for IEBC to restrict participation of candidates in elections based on their criminal background and financial probity (including tax compliance and indebtedness to public institutions).

Moreover, as aspiring public/State officers, candidates for elective positions must address themselves to the strict requirements of Article 73 of the Constitution and the wider Chapter Six on Leadership and Integrity.

This requirement calls for high standards of probity on the part of public officers. The IEBC, being a public institution, cannot itself justify failure to enforce these requirements.

It is important to note that even though the Elections Act, 2011 has not expressly addressed itself to these constitutional requirements, it accords the IEBC express powers to formulate such laws and regulations that will guide proper conduct of nominations and elections.

This power is to be exercised by the IEBC by formulating regulations ‘at least six months’ to the General Election in terms of section 109 (3). It is within this context that the IEBC must take the initiative and formulate regulations that will guide political parties in undertaking nominations while insisting on ‘cleaning’ politics in Kenya.

Inevitably, the regulations must incorporate mandatory requirement for potential candidates to  declare their criminal background and financial probity and file sworn affidavits with the Commission.

In taking this pragmatic step, the IEBC will be playing its rightful role in ensuring transparent and credible elections in Kenya while also drawing on best election practices worldwide. Undoubtedly, the best experience is from India, the world’s best biggest democracy. Several jurisdictions have implemented this requirement including Australia, Canada and the United Kingdom.

In a precedent setting ruling, India’s Supreme Court in the Union of India vs Association of Democratic Reforms & Another (Civil Appeal No. 7178/2001) had this to say while directing the Electoral Commission of India (Kenya’s equivalent of IEBC) to amend its electoral rules:  Under our Constitution, Article 19 (1) (a) provides for freedom of speech and expression.

Voters’ speech and expression in case of election would include casting the votes that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must.

Voter’s right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law breakers as law makers’.

What is discernible from the Indian experience is that the IEBC, have capacity to ensure integrity compliance. IEBC has powers vide section 109 (1) of the Elections Act to formulate these regulations. IEBC has to seize the moment and affect these important electoral requirements at all electoral units.

The writer is an Executive Director, Internal Centre for Policy and Conflict