This week, political analysts, politicians, lawyers and members of the public have been mulling over the true value and meaning of Chapter 6 of the Constitution. This was triggered by the declaration by Ferdinand Waititu that he plans to run for the office of Governor of Nairobi.
He has been cleared by the Registrar of Political Parties as an independent candidate despite his very public impeachment from the position of Governor of Kiambu early this year. The main question is: Is he eligible to run for the office of governor or any other political or State post
It should be noted that in 2017, Waititu was cleared to run for Governor of Kiambu despite the 2014 declaration by Lady Justice Mumbi Ngugi that he was unfit to hold public office. The judge also nullified his appointment as chairman of Athi Water Services Board.
For the avoidance of doubt, Article 75 (3) of the Constitution disqualifies from holding State office any person who has been dismissed or otherwise removed from office for a contravention of the provisions “mentioned in clause (2)”.
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Nevertheless, clause 2 only addresses financial probity issues specific to maintaining a bank account outside Kenya and seeking or accepting a personal loan or benefit in circumstances that compromise the integrity of the State officer. Others are restrictions on double employment and dual citizenship.
It is noteworthy that Waititu was removed on the grounds of gross misconduct, abuse of office and engaging in corruption and not what is expressly laid out in clause 2.
His removal was done via his impeachment by the Kiambu County Assembly and subsequent confirmation by the Senate in exercise of its quasi-judicial powers to hold hearings on and conduct investigations into disputed claims and alleged infractions of rules and regulations and to make decisions in the general manner of courts. In other words, a full hearing was held by the Senate.
Interestingly, Articles 180 (2) and 193 (2) g respectively dictate on the one hand that for a person to be eligible to be a candidate for County Governor, he must be eligible to be a Member of the County Assembly (MCA) and that a person is not eligible to be an MCA if that person has been found, in ‘accordance with any law’, to have misused or abused a State office or public office or to have contravened Chapter Six.
This means that Waititu is ineligible to run for governor by dint of being ineligible to be an MCA due to his lawful removal from office during his impeachment. It also means that he may not have been eligible to run for Kiambu Governor in the first place owing to the declaration by Justice Ngugi that he was unfit to run for office in 2014.
What does Chapter 6 mean and how can its aspirations be realised?
Our courts should once and for all clarify whether Chapter 6 sets up a fit and proper test for leadership for both elective and appointive offices. Another thing that should be clarified is whether the eligibility test should be wider than the strict requirement that one must be found guilty or unfit by a competent judicial forum as opposed to clearances by various bodies such as is the case currently.
In the end, I suspect the courts will only support barring only those who have been found guilty by a judicial or quasi-judicial process such as findings of courts or impeachment proceedings even though the considerations and standards of proof are fundamentally different in the two scenarios. Impeachments are often purely political whereas courts rely on rules of evidence.
Normally, courts would hesitate to interfere with the sovereign say of the people of Kenya. Justice Msagha Mbogholi once said: “The Constitution of Kenya places all the sovereign power on the people of Kenya, which shall be exercised only in accordance with the Constitution. Limiting the people’s rights would be inimical to the exercise of democratic right and freedom of its members.”
As such, Parliament should make clear laws on eligibility that will require them to strike a balance between the individual right to vie for political office, right to vote for a person of one’s choice, the sovereignty of the people, as well as the fundamental need to safeguard public functions and resources through competent and untainted leadership.
Mr Kiprono is a constitutional and human rights lawyer. [email protected]