In an Article published in The Star on November 7, 2012, the venerable advocate Pheroze Nowrojee argues that Chapter Six of the Constitution of Kenya does not bar William Ruto and Uhuru Kenyatta from running for presidential office.
It is hard for me to imagine that I can argue with Mr. Nowrojee. He is one among very few advocates I reserve great respect for because of his depth in understanding the law, his commitment to advancing social justice through law and his humility and integrity of character.
But this is an important subject for the country and for the preservation of the integrity of the Constitution and I believe that Mr. Nowrojee is wrong in his interpretation of Chapter Six. My position is that Chapter Six bars Ruto and Uhuru from running for the presidency.
Mr. Nowrojee substantially relies on four Articles of the Constitution to show why the two are not barred from running for the presidency. But let's set the record straight first.
Mr. Nowrojee does not argue that the two are necessarily eligible to be president, instead, he argues that they are only eligible to be presidential candidates.
This distinction is important, because while Mr. Nowrojee takes the position that nothing in Chapter Six prevents the two from being cleared to run for presidency, the entirety of his Article strongly suggests that if in fact Chapter Six would bar a person facing criminal trial at the Hague from becoming president, then both Ruto and Uhuru do not qualify to be president.
The four Articles of the Constitution Mr. Nowrojee rely on are Articles 73, 75(1), 80 and 260. He argues first that Chapter Six relates and is intended to regulate only state officers.
Article 73 sets out the principles of leadership. In his view, the principles in Article 73 therefore only apply to state officers. Similarly, in his view, Article 75(1) only regulates the behavior of state officers.
He further argues that Article 260 does not include a presidential candidate among those named in the list of state officers, although he admits it names a president as a state officer.
From these provisions he concludes that because Ruto and Uhuru are merely presidential candidates and Chapter six does not deal with presidential candidates, then their eligibility as presidential candidates is not regulated and can therefore not be barred by Chapter Six.
He goes further and relies on Articles 80 and 75(1). On Article 80, he argues that parliament is required to develop legislation operationalizing Chapter Six.
Parliament has already done this through Leadership and Integrity Act. The Act does not bar presidential candidates from running for presidency on account of Chapter Six and hence Article 80 or its implementing legislation cannot be used as a bar for their candidacy.
In sum, Mr. Nowrojee's thesis is that Chapter Six is only intended to address integrity standards of state officers, not persons aspiring to be state officers. Ruto and Uhuru are presidential candidates, not presidents - therefore in his view Chapter Six cannot stop them from being candidates.
There are two significant problems with Mr. Nowrojee's logic. First, Mr. Nowrojee ignores a number of critical provisions of the Constitution - those setting out the qualifications of a presidential candidate.
Qualifications of a presidential candidate (which also applies to deputy president) are set out in Article 137. Specifically, Article 137(1)(b) requires that for one to be qualified to run as president he or she "must be qualified to stand for election as a member of parliament." Article 99 sets out the criteria of eligibility to stand as a member of parliament, and specifically Article 99(2)(h) disqualifies any person from standing as a candidate if he or she is found "...to have contravened Chapter Six." This therefore means that one criteria that a presidential candidate must meet to be eligible to run is prove that he or she has not contravened Chapter Six.
Mr. Nowrojee's assertion that Chapter Six only applies to persons when they become state officers therefore ignores this critical provision of the Constitution. Chapter Six also applies to prospective state officers.
Mr. Nowrojee's argument is also wrong on second critical account. He uses only one principle of Constitutional interpretation in making his argument - which is "plain language" meaning of a provision principle. In his view, the plain language meaning of various provisions in Chapter Six only relates to state officers' not prospective state officers.
But one of the critical constitutional interpretative principle is the "purposive" approach to understanding the meaning and intention of a provision.
Part of this would include the spirit of the provision, but more specifically the principle requires that a Constitutional provision be interpreted in a manner that strives to achieve the purpose for which it was enacted.
The purpose of Chapter Six was to give Kenya the opportunity to disqualify persons who lacked integrity and who would bring disrepute to state office from serving as state officers.
Those who would want to argue with this purpose are only those who would argue with the fact that the Pope is Catholic. If in fact this was the purpose, shouldn't Chapter Six be interpreted, without any equivocation that persons who lack integrity or who would bring disrepute to a state office are not even eligible to run for office?
This is especially important when the cause of disrepute relates to a finding by the International Criminal Court that there are substantial grounds for believing that an accused committed the crimes charged.
More importantly Mr. Nowrojee's arguments add up to this: Ruto and Uhuru can be presidential candidates, but they cannot be president.
For, in his view, it seems he believes that Chapter Six does not bar them from running for presidency, but does bar them from becoming president. Do I even understand me?
My view is that Chapter Six is potent enough as a fair legal tool to bar any prospective candidate seeking state office - be it member of county assembly or president - from being allowed to run for office.
There is enough to support this by reading the entirety of the Constitution, but there is even more when one incorporates the purpose of Chapter Six and the spirit of the Constitution in that reading.
The various state agencies, Independent Electoral and Boundaries Commission (IEBC) included, have a Constitutional obligation to ensure that persons whose character does not meet Chapter Six requirements are barred from running for state office jobs.
The Author is a director with Katiba Institute