11 February 2012

Kenya: Why Big Guns May Be Barred From Presidential Race

Photo: Stephen Mudiari
President Mwai Kibaki: After the vetting, the Ethics and Anti-Corruption Commission will issue a certificate to the aspirant to vie for the seat.

Nairobi — Dozens of aspirants for presidential, county and parliamentary seats in Kenya's General Election could be locked out of the race under the terms of a proposed new law on leadership and integrity.

The Leadership and Integrity Bill 2012 published last week sets out stringent conditions for those seeking elected positions.

The Bill is designed to give agency to Chapter 6 of the Constitution, which covers leadership and integrity.

Its sweeping recommendations could see most of the political class ruled out of the running, including the majority of the MPs, who do not pay taxes.

If the Bill is passed in its current form, it could also effectively disqualify most of the top-tier presidential aspirants.

Clause 35 of the Bill states that anybody who does not pass the integrity test shall be barred from holding public office.

"A person seeking to be appointed or elected as a state officer may not be eligible for appointment or to stand for election to such office if that person has, as a State officer, contravened the Leadership and Integrity Code under this Act or while serving as a public officer, has contravened a code of ethics and integrity applicable to that officer," it reads.

"Each responsible commission for a state officer shall be responsible for availing information to any selection panel, appointing authority or Parliament, as the case may be regarding the compliance or otherwise, with the Leadership and Integrity Code under this Act by person seeking appointment or election to a state office."

The Bill gives the Ethics and Anti-Corruption Commission powers to bar any person from seeking elected or appointed office if they have contravened the law.

"The Ethics and Anti-Corruption Commission and the responsible commission may, on application by any person, issue a certificate to that person or any other interested person or institution, confirming that a particular state officer is compliant or not compliant with some or all of the provisions of Chapter Six of the Constitution or this Act," reads clause 43(1) of the Bill.

Only last week, a new political movement warned that it would move to court to seek orders to block eight presidential hopefuls from running for office.

"These are individuals who have been adversely mentioned in various commission reports that raised issues on their integrity and we have to block them from ascending to power.

"We have to get someone without baggage to lead this country," G47 governing council chairman Ken Wafula warned.

Mr Wafula also revealed that a team was compiling a list of MPs who had not paid taxes, with the aim of blocking them from running.

Most of the contenders for the presidency have been involved in controversies involving corruption or crimes against humanity at some point in their careers.

Prime Minister Raila Odinga's office was recently in the spotlight over the misuse of funds allocated to the Kazi kwa Vijana project, but he vigorously defended himself in Parliament against the allegations.

The Kenya National Commission on Human Rights report on post-election violence linked Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto to the post-election violence.

The International Criminal Court (ICC) has since confirmed charges against the two presidential contenders.

Goldenberg scam

Deputy Prime Minister Musalia Mudavadi was also named in the Goldenberg scandal, but a commission of inquiry chaired by Court of Appeal judge Samuel Bosire cleared him of any involvement in the scandal.

More recently, he found himself embroiled in a controversy over purchase of land for a cemetery for the Nairobi City Council.

The land was deemed to have been unsuitable, and audits indicated the council overpaid for it.

Another presidential hopeful, Prof George Saitoti, was also linked to the Goldenberg scandal, but the courts cleared him of any involvement in the multi-billion shilling scam.

Foreign Affairs Minister Moses Wetang'ula, who has also declared his interest in the presidency, was suspended from the Cabinet after being implicated in the irregular acquisition of Kenya's embassy in Tokyo, Japan, but he was reinstated after being cleared by the Kenya Anti-Corruption Commission.

Culture of impunity

Some politicians and civil society activists have welcomed the Bill. Acting Finance Minister Njeru Githae said it would go a long way towards ensuring that only leaders of integrity are elected or appointed to public office.

But he cautioned against the law being misused to deny people their democratic right to seek elected office or appointment.

"It is a good Bill, and I welcome it because it will now clearly define Chapter 6 of the Constitution, but we must check against the law being misused to frustrate people's democratic right to vie for public offices," the minister said.

Mr Mwalimu Mati of the Mars Group, a transparency and accountability lobby, also welcomed the Bill but called for political will to ensure adherence.

"We definitely support any law that seeks to give force to the new Constitution. However, Kenya's problem has never been lack of laws but fidelity to those laws and the culture of impunity that once you are in a public office, you can get away with anything.

"In 2004, we passed the Public Officer Ethics Act but up to today, I'm yet to see a single big fish arraigned in court for contravening the law," he said.

The integrity and ethics chapter in the Constitution is considered one of the most crucial because it discusses national values and the standards expected of public servants.

There has, however, been uncertainty over how to implement it practically. The new Bill seeks to address that with several clauses aimed at explicitly defining what is expected of those holding public office.

It proposes that anybody aspiring to hold elective or public office be cleared by bodies such as the Ethics and Anti-Corruption Commission, the Kenya Revenue Authority or the Independent Electoral and Boundaries Commission.

The Bill defines state officers as the President, the Deputy President, Cabinet secretaries, MPs including the Speaker, secretary to the cabinet, principal secretaries, members and secretaries of constitutional commissions, the Controller of Budget, Auditor-General, Attorney-General, the Director of Public Prosecutions, members of county assemblies including governors, senators, the Speaker of the County assembly and members of the county executive committees.

Constitutional commissions include the Kenya National Human Rights and Equality Commission, the National Land Commission, the Independent Electoral and Boundaries Commission, Parliamentary Service Commission, Judicial Service Commission, Commission on Revenue Allocation, Public Service Commission, Salaries and Remuneration Commission, Teachers Service Commission, Ethics and Anti-Corruption Commission and the National Police Service Commission.

Investigating CDF accounts

Last year, former Kenya Anti-Corruption Commission (KACC) Director PLO Lumumba rattled MPs when he warned that KACC was investigating all the 210 Constituency Development Fund accounts.

"Our guys are on the CDF accounts. We want to conduct thorough investigations. Those found to have misused the fund will definitely face the law," Prof Lumumba said then.

MPs have also been at loggerheads with the revenue authority over the taxation of their hefty salaries in line with the new Constitution, which says that nobody shall be exempt from paying taxes.

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