The watering down of the integrity law by lawmakers in 2022 has made it almost impossible to bar tainted politicians from running for office.
Instead of making the law tighter, the move created a window for leaders facing graft, hate speech, incitement and other criminal charges to vie even with cases in court.
The Leadership and Integrity Act passed by Parliament back then paved 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.
The passed law 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.
Kenya’s attempt to enforce integrity laws started in the 2017 polls when an attempt by 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.
The row over clearance of politicians with integrity issues began before the 2013 polls, just a year after the integrity laws were passed.
The law 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.
“Parliament’s passing of the Act in its current form is a deliberate attempt at sabotaging strict enforcement of ethical and moral requirements,” argued the Constitution Implementation Commission (CIC) led by Charles Nyachae in October 2012.
Interestingly, the then National Assembly Constitutional Implementation Oversight Committee chairman Abdikadir Mohammed and then-Justice and Legal Affairs Committee chairman Njoroge Baiya defended the provisions of the Bill.
Mohamed, the then Mandera Central MP had argued that because there were no parameters against which to judge the suitability of candidates based on their morality and ethics, there was room for abuse, especially if the vetting agencies were partisan.
“When it comes to subjective issues, it is difficult to vet. It is not done anywhere in the world. Let the voters decide, so that there’s as much transparency as possible,” said Mohamed.
Mohamed further argued that issues such as convictions for a period of more than six months and age limit were easy to ascertain but queries about morality or ethics were relative.
“All those with pending cases and issues will make a declaration to the electoral commission. The IEBC will notify the EACC. If there are any issues, it is upon the public to decide whether to elect them or not,” Baiya had argued.
IEBC, which is empowered by law to clear political candidates, insists that its hands are tied, as it’s only allowed to bar those who have been convicted for a sentence exceeding six months.
This means politicians facing corruption, hate speech, incitement and other cases may still vie for any seat in next year’s polls.
The MPs also borrowed a leaf from the High Court which 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).
Since 2010, 824 high-ranking officials in government – including Cabinet secretaries, governors and MPs – have been arraigned in graft-related cases.
The electoral agency Chairman Wafula Chebukati has reinforced, was the provision of Chapter Six of the Constitution on Leadership and Integrity, which bars a state officer kicked out for abuse of office, from holding any other position.
Article 180 (2) makes it mandatory that to be eligible for election as county governor, a person must be eligible for election as a member of the county assembly while Article 193 (2g) states that a person is disqualified from being elected a member of a county assembly if the person has been found, in accordance with any law, to have misused or abused a State office or public office or to have contravened Chapter Six.
“A person who has been dismissed or otherwise removed from office for a contravention of the provisions specified in clause (2) is disqualified from holding any other State office,” Article 75 (3) states.
, who was impeached in January last year, and Sonko, who was shown the door in December, had both been flagged by the
The then Ombudsman Otiende Amollo in 2012 had disclosed that former Kiambu Governor Ferdinand Waititu and his Nairobi counterpart Mike Sonko were unfit to hold public office.
“As the Ombudsman in 2012, I determined that Waititu and Sonko among 34 others were unfit for public office due to integrity issues. The IEBC, and the people, ignored. Let’s just say, facts are stubborn,” said Amollo in December last year.
Amollo’s sentiments exposed just how difficult lawmakers made it for politicians to be barred over integrity issues.