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Only court can bar ex-governors from city poll, says Havi

By Stephen Rutto | January 1st 2021

Impeached governors Ferdinand Waititu (Kiambu) and Mike Sonko (Nairobi). [File, Standard]

Law Society of Kenya President Nelson Havi has said the anti-graft agency and the electoral commission cannot bar impeached governors from running for the Nairobi governor by-election set for February.

Mr Havi said former Nairobi Governor Mike Sonko and former Kiambu governor Ferdinand Waititu, whose impeachment Senate upheld, can only be stopped from contesting by a court of law.  

Havi said the Constitution permits the duo, who have been accused of corruption and abuse of office, to run for elective positions provided the appeal mechanisms available to them have not been exhausted.

Abuse of power

He said the Senate made political decisions in which the evidence used during the impeachment of the ex-county chiefs can be challenged in court.

“Locking out Sonko and Waititu sets the stage for abuse of State organs mandated to instil good governance to preclude individuals who pose a serious challenge to powerful people in government,” Havi told The Standard in an interview in Soy, Uasin Gishu County.

According to the LSK boss, the question of determining integrity in persons running for political office does not lie with Parliament.

Havi also said clearance by the Ethics and Anti-Corruption Commission (EACC) to vie for an election is not a legal requirement.

“I have seen the statement by EACC that seems to indicate that the commission can make a decision barring anyone from contesting for office. I think that is the height of impunity. The best way this matter can be resolved is to be submitted to a court of law so that a determination is made once and for all, as to who has the final say on the question of integrity,” he said.

He added: “One may want to abuse the legal systems to preclude these individuals from running for office. But democracy can’t prevail in such an environment. Democracy is intended to enable people to make choices and live by their choices.”

Legal battle

Under the Act that governs the prosecution of corruption and abuse of office, Havi said, the cases that Sonko and Waititu are facing ought to have been concluded within two years, but this has not happened to date.

He said the two former governors have challenged their impeachment and because a review of their appeals has not been made by the highest court in the land, there is credible merit that both of them can still run for office.

Havi warned that a legal battle could be expected in the event that the Independent Electoral and Boundaries Commission (IEBC) rejects the ex-governors’ nomination papers.

“The final say lies with the courts. It cannot lie with the IEBC because we have cases where the IEBC barred candidates from running and the courts overturned their decisions, like in the case of Wavinya Ndeti in 2017,” he said.

Ms Ndeti, who was in the race for Machakos governor, had been barred by the IEBC on grounds that she was registered under two political parties. But the High Court ordered the electoral commission to include her name in a gazette notice for candidates vying in the August polls.

Havi said EACC and IEBC would be applying double standards given that President Uhuru Kenyatta and his deputy William Ruto were allowed to run in 2013 despite facing charges at the International Criminal Court.

Two days ago, Tharaka Nithi Senator Kithure Kindiki said governors removed from office by impeachment cannot run for elective office or hold any other State or public post.

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