Lower threshold to give meaning to chapter on leadership and integrity

Kenya has struggled to breathe life into Chapter Six of the Constitution, designed to ensure good leadership and integrity for all appointed and elected officeholders.

However, corruption, nepotism, tribalism, conflict of interest, racketeering, and conspiracy are endemic in public service, including in counties.

The first challenge since 2010 was that the codification of leadership, integrity and political accountability was left to the political class to legislate. As expected, MPs passed soft laws, such as provisions on the right to recall elected leaders who underperformed.

However, it is noteworthy that this part of the Constitution has never been invoked despite some MPs never uttering a word in Parliament and others voting against their people's interests.

Many legislative and executive officeholders in Kenya are being investigated for serious crimes. Some have been charged with serious criminal offences ranging from corruption, murder, forgery, hate speech, et cetera.

Others have even been impeached from office, yet this does not affect their ability to run for office in August.

For example, a debate is now raging about whether former Nairobi Governor Sonko can run in Mombasa, even when a court confirmed his impeachment. If the impeachment stands, he should not run for any elective office, even if he has not exhausted his avenues of appeal.

The right to a fair trial and the corresponding right to be presumed innocent until proven guilty seems to conflict with Chapter Six on leadership and integrity.

This was made clear in the court decision that cleared the President and Deputy President to run for office in 2013 despite being indicted for crimes against humanity by the International Criminal Court.

The rationale was that, despite the indictment, the two had not been found guilty by a competent court, and thus their right to run for office and the corresponding right of Kenyans to choose their leaders trumped the allegations.

The leadership and integrity provisions compete with other fair trials and political rights. So, what is the way forward for a country that has suffered from leadership gaps seriously?

I think the problem lies with the threshold and the test applied on whether someone meets the expectations of leadership and integrity. We need to have a national conversation on what it means for a person to have the right to lead, whether the right can be limited, and whether their record can void these rights in line with Chapter Six.

We only have an objective test that asks whether a person has been found guilty by a competent court. Moreover, the threshold for being found guilty in criminal cases is beyond a reasonable doubt, designed to protect innocent people from being unfairly sanctioned by the State.

The understanding is that the State should avoid the conviction or punishment of an innocent person even at the risk of allowing a certain number of acquittals of the actually guilty.

The objective in criminal cases is to protect the innocent from wrongful punishment, which ranges from fines, custodial sentences, parole and even death.

Is it right to use the same rationale used to protect innocent people from punishment to secure the privilege of a politician to run for office? If I am denied the licence to run for office, can it be equated to a sentence in a criminal case? I think not.

Perhaps we should have a subjective test instead that utilises a preponderance of evidence threshold used in civil cases that would only bar someone if there is clear and convincing evidence to support their barring from seeking elective office.

This approach would balance the individual's rights with the public good.