The Question of Ethics and Integrity of Candidates in Kenyan Elections

Kenya’s moral fabric is at stake with only three months to General Elections. A 2012 move by the country’s legislators to shoot down a watertight integrity law has made it almost impossible to bar corrupt and morally unfit politicians from running for public office.

The sad assault into the ethics and integrity-hinged law has instead created a window for leaders facing graft, hate speech, incitement and other criminal charges to vie even with cases in court.

In what appears to be absurd yet a plea of helplessness, Kenya’s anti-graft body and directorate of public prosecutions has asked Kenyans not to vote for leaders facing various charges in court.

Even Kenya’s electoral agency, the Independent Electoral and Boundaries Commission (IEBC) has announced they have no powers to block candidates facing ethics and integrity issues from contesting, leaving the task to Kenyans.

In a country where vote buying and a candidates’ financial muscle is factor of consideration for election, the non –informed citizenry has then been left a herculean task of not choosing tainted candidates into leadership positions.

According to the current law, IEBC can only prevent someone from vying if they have been convicted in a court of law of a minimum sentence of six months and above. The agency has admitted that it does not have any other guideline that can stop someone from contesting, and that they will not be involved in mob lynching.

The Leadership and Integrity Act passed by Parliament in 2012 paved the way for those with pending cases to contest and barred the Ethics and Anti-Corruption Commission (EACC) from accessing information from State bodies on individuals seeking leadership positions.

It also denied the agency prosecutorial powers and the ability to offer compliance certificates to candidates in accordance with Chapter Six of the Constitution. While the original idea of the law was to bar tainted individuals from holding public office, the MPs turned this concept on its head.

So watered down was the law that it not only insists on a conviction of not less than six months for one to be barred from contesting, it also insists that there has to be a demonstration that one was given an opportunity to exhaust all avenues of appeal, making it a near impossibility to nail such leaders.

This has enabled dozens of politicians facing different charges in court to keep on with the impunity, with the law protecting their deeds, and ensuring their clearance to contest again.

Often cited is the 2012 case where the High Court cleared Uhuru Kenyatta and William Ruto to run for president and deputy president, respectively, while facing charges of crimes against humanity at the International Criminal Court (ICC).

During the ruling that opened gates for non-fit candidates to contest elective positions, the judges explained that the two had already been cleared by the IEBC which is mandated to review and clear the eligibility of people seeking elective positions.

The judges further ruled that questioning their integrity required a proper inquiry which was not the mandate of the court, which relies on evidence provided.

According to the five-judge bench, the petitioners in the case should also have gone to the IEBC to raise complaints within the timelines provided for resolving disputes related to the nominations of the two.

The judges further said it was up to Kenyans to elect leaders of their choice, a responsibility that should not be blocked.

Since 2010, more than 824 high-ranking officials in government – including Cabinet secretaries, governors and MPs – have been arraigned in graft-related cases.

Kenya’s attempt to enforce integrity laws started in the 2017 polls when an attempt by the Ethics and Anti-Corruption Commission (EACC) to bar 106 politicians facing graft cases was shot down after the IEBC said it could only stop them if they were convicted and had exhausted all avenues for appeal.

They included 11 gubernatorial candidates, one for the Senate, two for woman representative positions, 13 seeking parliamentary seats and 14 for the county assemblies.

In the current blame game circus involving state agencies, the IEBC has instead blamed courts for hindering its mandate to enforce ethics and the code of conduct in the elections process.

Kenya’s renown rights activist Okiya Omtatah has petitioned court to order the electoral commission to block persons with integrity questions from vying for elective public seats.

In a turn of events following public outcry and pressure, the anti-graft agency has now supported the court case arguing that “presumption of innocence until proved guilty” when it comes to clearance of political aspirants should not be used to allow tainted persons into public office.

The debate on whether to allow these kind of candidates to run for office has been thrown into a constitutional interpretation confusion and what tenets of democracy holds for a country whose fight for graft hasn’t been sincere, at least to extreme political observers who have read mischief in current and past purges.