Supreme
Court has denied to rule on integrity for holding office
A
pertinent question arises as the nation marks the first ten years in August of
the implementation of the new Constitution. Has the purpose for which Chapter
Six on integrity has sufficiently served? It is hard to say that public leaders
should be beyond reproach like Caesar’s wife.
This
is why Kenyans issued the new Constitution with a leadership and integrity
chapter on August 27, 2010. Chapter Six provides the criterion for nomination
and election to the State Office for personal integrity. The main goal is to
increase public accountability.
As
the country celebrates 10 years in August of the implementation of the new
constitution, the relevant question arises: the purpose for which Chapter Six
was enacted has been sufficiently satisfied.
Kenyan
leadership and integrity between state and public authorities still suffers
severe deficits. It cannot be denied. These indicate challenges in Chapter Six
implementation.
Though
some of the obstacles might be identified as various problems, such as weak
statutory frameworks and public apathy, the main blow was the ruling of the
Supreme Court in the 2017 Advisory Opinion Reference 1 of the Kenya National
Human Rights Procurator.
The
Courts have a duty in Article 259 to interpret the Constitution so that its
ends, values and principles may be encouraged and law development may be
enhanced, and good governance can be promoted.
The
gaps in the Leadership and Integrity Act of 2012 cannot therefore be an excuse
for Chapter Six when electing individuals as public servants to be not fully
applied. The courts have the inherent competences to unlock it to clean up our
policy effectively.
Although
superior courts have registered sound jurisprudence in several other aspects of
the fight against corruption including in the case the Supreme of Court failed
Kenyans when it was called upon to interpret and develop jurisprudence on this
chapter in the cited advisory opinion.
The
KNCHR, EACC, the IEBC and other agencies had moved to the court in 2017 to
render an advisory opinion and provide guidance on the test of integrity
required for election or appointment of persons to office.
The
thrust of the case was that the High Court and the Court of Appeal had
interpreted the chapter in a restrictive, conflicting, inconsistent and incoherent
manner, resulting in a confused jurisprudence.
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Although
the courts have generally recognised the need to implement and observe the
chapter, the various decisions have so far been contradictory, inconsistent,
and incoherent. They don't offer any clear or conclusive determination of the
proper integrity test.
This,
coupled with the weaknesses in the Leadership and Integrity Act, has remained
the major obstacle to effective implementation. There was thus an urgent need
for guidance by the apex court.
Before
the matter was heard, activist Okiya Omtata, an interested party, raised a
preliminary objection contending the court had no jurisdiction to render the
sought advisory because there were two related petitions pending before the
High Court.
In a
majority decision of 5-2 in February this year, the Supreme Court rendered its
ruling. It allowed the preliminary objection, effectively declining to hear the
matter citing lack of jurisdiction. The majority bench cited the two petitions
that have been pending in the High Court since 2017.
In
the dissenting opinions, however, Justices Isaac Lenaola and Mohammed Ibrahim
argued that the court indeed had jurisdiction to hear the matter and that it
was of great importance for it to provide guidance on how the chapter should be
applied.
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In
his dissenting opinion, Justice Lenaola said: “I, therefore, find, without
hesitation, that time am ripe for consideration and direction by the Supreme
Court on the applicable criteria under Chapter Six of the Constitution.
An
invitation for this court to down its tools for lack of jurisdiction should not
to be permitted; as such an action would occasion an injustice to the wider
public interest.” “One of the issues that I would have expected this court to
render an advisory opinion on, is this: Whether Chapter Six of the Constitution
sets up a fit and proper test for leadership including elective and appointive
offices; and if so, what is that test?”Lenaola further asked. Justice Ibrahim
adopted this dissenting opinion.
The
dissenting voices are a clear indication of what Kenyans yearn for and an
affirmation of a good opportunity that arose to resolve the jurisprudential
confusion that has impeded the effective enforcement of the Integrity chapter
since 2010.
The
highest court acknowledged several of its previous decisions where it has
affirmed its unfettered discretion regarding when to exercise jurisdiction and
render advisory opinions.
As
observed by the dissenting judges, this was a proper case where the scales of
justice should have tilted towards the exercise of jurisdiction, considering
the great national importance and overwhelming public interest in the effective
implementation of Chapter Six.
The
Supreme Court, as the final arbiter in Kenya, should have given direction, guidance
and breathe life into this matter. In this case, its act of deference, with
tremendous respect, denied Kenyans a hand in the quest to hold political
leaders accountable.
The
question as to how Kenyans, stakeholders and other oversight institutions have
promoted or implemented Chapter 6 of the Constitution, to date, is critical.
The sovereign power belongs to the people of Kenya and one of the ways to
operationalize it is through the ballot.
It
cannot be denied that in the 2013 and 2017 general elections, citizens did not
critically assess and conduct social accountability or vetting to ensure that
only leaders with the highest level of integrity accessed public office.
Although
it can be safely argued that citizens were not sufficiently empowered to
discharge this cardinal responsibility, much more diligence was required of
them when electing persons to office. On the other hand, the civil society and
the media have been key actors in the social accountability discourse.
Though,
their reach and impact is also limited. Various oversight institutions have
made notable effort to enforce Constitution. However, those efforts have not
borne much fruit due to major gaps in the legal framework for
operationalization.
The
above state of affairs left the country with the Judiciary, which by virtue of
its constitutional power and mandate could effectively determine the course
that Chapter 6 would take.
I
pause here and note that enactment of a Constitution does not stop at
promulgation. It continues through purposive interpretation guided by a
country’s changing needs and historical experiences, and Courts have inherent
powers in this regard.