Courts should interpret Chapter 6 to protect Kenya from graft, impunity

Demas Kiprono, Deputy Director - ICJ Kenya.

Corruption has been a persistent challenge in Kenya affecting various aspects of public and private life since independence. Many partly blame much of the post-independence era's corruption on the 1971 Ndegwa Commission on Public Service recommendation to allow public servants to engage in business. It set the stage for politicians and public servants using public funds as a cash cow.

Part of the push for reforms throughout the 1990s and 2000s, especially during the constitution-making process, was targeted towards closing corruption loopholes, inculcating integrity and accountability in public service, reforming certain public institutions and bringing in servant leadership.

The topic was so important that Kenyans promulgated a constitution whose Chapter Six was dedicated to leadership and integrity. The chapter outlines the requirements and expectations for individuals serving in leadership positions in various capacities and stresses the need for integrity, dignity, transparency and accountability.

During the reform processes in the 2000s and the initial phase of implementation of the 2010 Constitution, there was a deliberate move to radically transform the Judiciary and the National Police Service through vetting.

This included the Judiciary's 'radical surgery' when President Kibaki took over, the judges and magistrates' vetting post-2010 and the police vetting to determine the suitability of serving judicial or police officers.

Though these processes were widely litigated and criticised, critics have lauded the post-2010 vetting of judges and magistrates as largely successful due to what many regard as a process that saw many incompetent and corrupt judges sent home in a straightforward legal approach based on open and verifiable criteria.

As a result, there was an apparent uptick in public confidence in the Judiciary and professionalism.

The police vetting process, on the other hand, has been criticised as less transparent and largely ineffective due to allegations of intimidation of the National Police Service Commission staff and commissioners and an emphasis on financial probity rather than other indices such as officers' professionalism, human rights records and especially an inadequate legal framework.

As a result, the vetting did not boost public confidence in the police and did not interrupt corruption and illegality within the service. Still, other institutional changes, such as creating a civilian oversight body and changes in recruitment, promotion, and deployment procedures, helped for a while.

According to Transparency International, despite Chapter Six and other constitutional provisions setting standards and qualifications for leadership, Kenya still needs to breathe life into leadership and integrity, especially concerning elective positions. Court decisions on suitability do not advance Chapter Six of the Constitution.

Many argue that it is not okay for courts to apply the criminal standard of proof beyond every shadow of doubt instead of the civil one of a balance of probability.

A would-be leader's right to a fair trial and to be presumed innocent until proven guilty trumps the Constitution's desire for Kenyans to be led with integrity. As a result, persons accused of grave crimes have risen to elective and appointive positions despite having several active cases against them.

Consequently, only conviction after all appeal and review possibilities have been exhausted can disqualify MCAs, women reps, senators, MPs, governors, and the presidency. Was Chapter Six conceptualised to accomplish this?

The courts should interpret Chapter Six purposefully to protect the country from corruption and impunity. Accordingly, the courts cannot advance individual rights at the expense of Chapter Six.