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ELECTION 2022

Integrity law yet to grow teeth, so it's up to voters to reject tainted leaders

POLITICS
By Judah Ben-Hur | May 26th 2022 | 5 min read

When drafting the 2010 Constitution, Kenyans envisaged a document that would cure bad leadership, which has plagued numerous institutions since independence.

Consequently, the drafters provided Chapter 6 on Leadership and Integrity to streamline the public service.

“One of the geniuses of Kenya’s Constitution was actually Chapter Six. Kenyans wanted a certain type and character of leaders - making it the only Constitution in the world that has dedicated an entire chapter on leadership and integrity,” says Dr Ekuru Aukot, one of the drafters of the Constitution.

Article 75 (1) of Chapter Six stipulates that “a State officer shall behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids (a) compromising any public or official interest in favour of personal interest, (b) demeaning the office the officer holds.”

The chapter also spells out that any public officer who goes against the provisions is liable to “be dismissed or otherwise removed from office.”

Despite the enactment of the law, drafters of the document acknowledge that the vision they had and the reality of the day are light years apart.

“Kenyans themselves said, we have a great country but have been let down by leaders. But then there is another question that follows this, ‘what’s wrong with you Kenyans?’ We have to blame Kenyans because it’s the people who gave themselves a chapter on integrity, but they are the same people who elect bad leaders,” says Dr Aukot.

But the blame does not rest on Kenyans alone. Another drafter of the document, constitutional lawyer Bobby Mkangi, remembers how the mutilation of the draft constitution began before its promulgation on August 27, 2010.

Mr Mkangi recalls how the joint parliamentary committee on constitutional review was mandated for 30 days to scrutinise the draft constitution and only look at what the Committee of Experts (CoE) had flagged as contentious issues. However, when the committee met in Naivasha in 2010, it revised and in some instances, redrafted areas that needed no interference.

“That’s where the Leadership and Integrity Act, which was not a contentious chapter, ended up missing some clauses which would have had far-reaching consequences for leaders who offend that chapter,” he says.

National Coordinator Institute for Social Accountability, Wanjiru Gikonyo, concurs with Mr Mkangi. For her, the dilution of clauses in Chapter Six was intentionally crafted by Parliament in “its own interests.”

The National Integrity Alliance, a civil society movement where Ms Gikonyo is a member, recently published what they called the “red-card campaign” which intends to bar individuals with questionable integrity from public offices.

Speaking on Spice FM, Director of Public Prosecutions (DPP) Noordin Haji and Ethics and Anti-Corruption Commission (EACC) boss Twalib Mbarak expressed their frustration at seeing those facing criminal charges in office, even as others campaign for elective seats.

The two blamed weak laws that have been intentionally structured to protect political elites who would otherwise be the lead victims of Chapter 6 on integrity.

“They (MPs) have left the law open to the extent that those who are supposed to enforce or ensure that Chapter Six is actually operational do not have the powers to give Kenyans the desired results they want to see,” said Mr Haji.

Mr Haji cites the EACC vetting process, calling it amorphous and lacking a law governing the process. “They are telling Kenyans that these laws are crocodiles but they are logs; they can’t bite anything,” he says.

Sirisia MP John Waluke was found guilty of corruption-related charges and jailed for 67 days, but resumed his duties as MP after release from prison as he pursues his appeal against conviction. The MP is seeking re-election on August 9.

As it stands, those vying for public office, regardless of their criminal records and court cases, cannot be barred from running for office until they have exhausted all legal channels for appeal.

“We have red-flagged almost 106 candidates that these people are not suitable to vie for a political position,” says Mr Mbarak.

Despite investigative agencies executing their mandate, their hands are tied by laws that are currently inefficient in stopping tainted leaders from vying for elective seats.

Addressing presidential aspirants on Monday, Independent Electoral and Boundaries Commission (IEBC) chairperson Wafula Chebukati maintained that the position of the commission will be as per the law and will not bar anyone who is charged but has not exhausted all appeal mechanisms.

“Even if you have been found guilty but have appealed and have not exhausted your appeal, then you can be allowed to exercise your democratic right. That is the position of the commission,” said Mr Chebukati.

But Mr Haji holds a contrary opinion, saying, “My position is that if you are charged, you step aside. You cannot run for office until you finish the whole process.”

Last month, Interior Cabinet Secretary Fred Matiang’i said the next Parliament risks having money launderers and other criminals taking advantage of weak financial regulations in the electoral process to buy their way into office.

“We will end up with up to 40 per cent of holders of elective office being well known and established wash wash dealers (money launderers) because those are the ones hiring crowds...and in some constituencies, the people who we are profiling or we are investigating are the leading candidates...,” said Dr Matiang’i.

With Chapter Six reduced to a toothless dog, and the regulation on campaign financing kicked out of the game till 2027, aspirants can use their millions to influence their way into politics.

“Kenya is actually under capture. They (political elite) determine everything; how we do our elections, how we finance it... and it’s the people with the money that determine how we go into an election,” argues Dr Aukot.

Despite the gaps, the National Integrity Alliance has filed a petition in the High court for determination on what integrity entails as per the Constitution, who has the mandate to uphold standards of integrity, and who enforces Chapter Six.

“Issues of integrity are very murky and the case in the High Court is pushing to have EACC be the body enforcing standards of integrity,” said Ms Gikonyo.

From the ODPP, the Judiciary, civic society and drafters of the Constitution, the hope now rests on the electorate to vote for leaders of integrity.

“At the end of the day, It’s the people who could really send a sound message and create a convention around what people would be looking at during elections,” says Mr Mkangi.

“The only way we can change this is by electing individuals who can bite the bullet and go to Parliament and make the legislation that will give us the powers to deliver for Kenyans effectively,” says Mr Haji.

Ms Gikonyo believes that to fully address the thorny integrity issue in the country’s leadership, the country might need to take radical measures like a citizen-led process to clean up the Constitution.

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