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ICPC's Letter to IEBC on Enforcing Ethics and Integrity of Election’s Candidates in August 2017 General Election

Wafula W. Chebukati                                                                                                26th May, 2017.

The Chairperson,                                                                                   

Independent Electoral and Boundaries Commission,

Anniversary Towers, University Way, 6th Floor,     

P.O Box 45371 – 00100, Nairobi, Kenya.    

 

Dear Sir,

RE: Enforcing Ethics and Integrity of Election’s Candidates in August 2017 General Election

Greetings from International Center for Policy and Conflict, ICPC.

International Center for Policy and Conflict (ICPC) is a non-profit, Independent, human rights public policy research, advocacy and education institute. ICPC was recognized by the Court of Appeal as “Warriors of Constitutionalism and Rule of Law”

The above matter of national importance refers.

We appreciate the enormous task your office has to perform within statutory deadlines. This is particularly significant because this week your office shall start receiving formal applications from all candidates for various elective State positions or offices.

Independent Electoral and Boundaries Commission (IEBC) as mandated by the constitution must deliver transparent, credible, free and fair elections on August 8, 2017. It is the only hope to guarantee durable peace and political stability of the country.

On October 28th, 2011, International Center for Policy and Conflict wrote to the Chairman of the Independent Electoral and Boundaries Commission(IEBC) on this matter vide a Note titled: Note on Fundamental Right to Information and Decriminalization of Politics Under Election Act, 2011 and the Role of IEBC( see attached). 

We further wrote another letter dated 11th January 2013 on the same subject. We now wish to reiterate and bring to your attention certain obligations bestowed on the Commission by the Constitution and Courts’ rulings. This letter is also to remind you what is expected of IEBC while receiving nominees’ verification documents and clearance by the Commission.

 In 2012, we, the Center for Policy and Conflict (ICPC) filed a case in High Court challenging the suitability of candidates with integrity issues from running for State and public office.

We are today reiterating our call to IEBC to enforce the tight provisions of Chapter Six on matters of integrity of the elections and the candidates. This is a duty the IEBC must neither take lightly nor shy away from.

The Preamble of our Constitution recognizes the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law

The Constitution does not bar anyone from running for political office. However it sets out clear suitability criteria of who can occupy a state office. Elected representatives on oath discharge the Constitutional duties. The citizens have a right to know that elected representatives discharge their duties as per the Constitution and the law and are not amassing wealth/assets and or covering their past tracks through enacting self protective laws and crippling state institutions to defang them from either investigating and or prosecuting those elected public office holders who are deemed to have broken the law. 

We are particularly interested to see how your Commission will apply the rigors of Chapter Six of Leadership and Integrity on various candidates both at the National and County levels. The High Court has in two judgments affirmed that it is your Commission that is mandated to determine the suitability, competence and personal integrity of candidates to hold elective public office. The said Chapter and court rulings are very clear that such persons MUST be beyond reproach and must bring honour and dignity and inspire public confidence in the respective offices.  Your office and/or Commission derives its mandate from the Constitution of Kenya which represent the sovereign of the people and therefore must act without fear or favor in processing the candidates that the Kenyans are supposed to vote for.

The High Court vacated itself the jurisdiction of determining questions of suitability of Candidates for elective offices to your commission. A position your advocates defended robustly in court, in Particular in petition 549 of 2012, The Court thus held:

 

If there is any issue of qualification as to whether someone … is qualified to be a person to contest or vie for a parliamentary seat, it is not a matter for determination by the High Court in terms of Article 88(4) (e). It is a matter to be determined according to the procedures and mechanisms as provided by law applicable to the electoral process under the provisions of the IEBC Act, 2010, the Elections Act, 2011 and where applicable the Political Parties Act, 2011.

We therefore demand you to stamp your feet down and live true to the calling donated to you under Article 88(4)(e) of the Constitution and Sections 72(2)(4) of the IEBC Act 2011 which mandatorily expects you to disqualify candidates who do not meet the rigors of Chapter Six. The popularity of an election candidate DOES NOT OVERRIDE THE IMPORATNCE OF INTEGIRT REQUIRMENTS on him or her to hold state office.

Although every candidate has an individual right to contest for an office, such a right can only be exercised if it does not directly compromise the national values and public interest. Public interest supersedes individual interest. All information pertinent to the electoral integrity of candidates must be published and publicized for the purpose of enabling a voter make informed decision

We further want to clarify certain arguments that are being pedaled in the public on powers of the IEBC to bar election’s candidates.

 The constitutional jurisdiction of the IEBC  is wide enough to include all powers necessary for smooth conduct of elections and its attendants. The word 'elections' is used in the Constitution with wide sense to include the entire process of election which consists of several stages and steps.

IEBC must enforce integrity threshold for elected representatives, who are themselves state office holders like judges. Constitution bars discriminatory acts and or laws.  We cannot have two different sets of laws applying ethics and integrity to hold of state/public office.  In such situation, any law inconsistent with Constitution in null and void. 

Drafters of Constitution of Kenya 2010 were well informed by past governance deficit Kenya had faced. They imagined that there will be a time when the lawbreakers would become lawmakers and govern Kenya. This is because the most important criterion for political parties when they select their candidates is the latter’s ‘ability to win’, not their ethics or morals. Consequently, state institutions have been captured by criminals.

Chapter Six elicits two searching questions: Will a person facing serious crimes bring honour to the nation and dignity to the office? Will a person facing serious criminal charges be exercising his/her duties as a public officer “consistent with the purposes and objects of this constitution”? The answer to this is a resounding No.

Our concern is informed by the fact that people to be elected in various levels of the government will make laws and policies for five years which will either infringe or protect citizens’ rights. This is a critical obligation that must be carried out by people of good will and without conflict of interest with public good and service. it would be offensive to the Constitution and the people of Kenya to insinuate that a person who has neither been convicted or has been convicted but has not exhausted appellate process is free to compete and proceed to hold public office.

In fact, the judges in Mumo Matemu Case Law stated:

In our view, for purposes of the integrity test in our Constitution, there is no requirement that the behavior, attribute or conduct in question has to rise to the threshold of criminality. It therefore follows that the fact that a person has not been convicted of a criminal offence is not dispositive of the inquiry whether they lack integrity or not

Further, the Nancy Baraza Judicial Tribunal addressed and resolved Chapter 6 application on integrity. Issues of criminal records are only a part of a core set of integrity parameters which were well developed by the tribunal. The tribunal said, “We have spread our net wide and made reference to Chapter 4 on the Bills of Rights, Article 10, Article 28 and Article 73”.

The tribunal made a distinction between presumption of innocence( until proven guilty) as articulated in the administration of criminal justice and integrity standards expected of public/state officers. The standard of proof touching on the conduct and integrity of public/state officers is “neither that of criminal law, that is beyond reasonable doubt nor that in civil cases, which is on a balance of probability”, the tribunal asserted.

The tribunal stated that unethical conduct or lack of integrity by state officers only required accurate proof and material facts. The innocence of a suspect until proven guilty is within the purview of administration of criminal justice system but cannot withstand or hinder the well defined and enshrined national principles and values of ethics and integrity set in the Constitution. In any case, when your conduct leads you to reasonable suspicion from a law enforcement agency to prefer a charge to be drawn against you, your integrity is called to question.

In conclusion, we avert that the touchstone for the election candidates to hold a state or public office is the institutional integrity as well as the personal integrity of the candidate. If the election of a particular candidate adversely affects institutional integrity, then it shall be the duty of the nominating authority not to nominate such a candidate. Therefore, while nominating election candidates for various elective public offices, the integrity of the public institution is central consideration.

Finally, we remind you that IEBC is a constitutional office and Commission. Each officer of state and public officer is sworn to protect the Constitution and each officer is expected to uphold it in letter and spirit and anything less would attract court sanction.

 

Thank you!

 

Sincerely,

Ndung’u Wainaina,

Executive Director, ICPC.

 

CC:

Ezra Chiloba

Commission Secretary, CEO

 

 

Note on Fundamental Right to Information and Decriminalization of Politics under the Elections Act, 2011 and the Role of IEBC

 

  1. Introduction

 

The international Centre for Policy and Conflict (the Centre) is a not-for-profit organization registered as such in Kenya. The centre focuses on, amongst other issues, public policy research and dissemination, access to justice and the rule of law, good governance and human rights issues. As part of its mandate, the centre engages key stakeholders both in the public and private sectors on these issues with a view of sharing its perspectives and collectively contributing to a more free and democratic culture in Kenya and the region. Following the enactment of the Elections Act, 2011, the centre undertook independent research on how best it can be implemented within the context of the new constitution while also meeting the democratic threshold enshrined in the constitution.  Needless to say that elections in independent Kenya have been marred by innumerable incidences of violence and lack of transparency and accountability. Within this context, the credibility of candidates for elective positions is just as important and the process itself.  This note is intended to expound on the issue of the right of the electors to sufficient personal information on the candidates before elections. In true democracy, sufficient information on the candidates is inherently part of the electors’ freedom to make informed choice and cannot be taken lightly.  

  1. Background Information

In recent history, an unfortunate pattern has emerged of violence in elections in Kenya during general elections, by-elections and even civic elections. Most of these incidences are often blamed on party nominations and poor management of elections by institutions mandated to do so, especially the former Electoral Commission of Kenya (ECK). However, one aspect often ignored and which several researches and established practises have addressed themselves to is the question of credibility of candidates themselves for elections to positions of public office. Indeed, the issue of credibility goes to the core of the constitutional right to information so that the public can make informed decisions on the candidates prior to elections.  According to the current practise, the electorate tend to be informed, rather belatedly, of the criminal character of their representatives once they have been elected with no recourse at their disposal. This has direct implication not only on the quality of services they potentially receive from such candidates but also their fundamental right to proper information under the constitution. The IEBC, just like in other established jurisdictions, has a central role in reversing this trend and guaranteeing the electorates’ fundamental right to information about the candidates before elections.

3.      Applicable Law

Perhaps unlike in the past, the IEBC has clear legal backing to enforce this principle and ensure that candidates for elections meet the highest credibility test including their criminal history and financial probity. In fact, the law allows the IEBC some latitude such that the candidates can be obligated to provide this information under oath. As part of accountability mechanisms expected of the IEBC, this information should then be publicly displayed to the electors prior to elections. Article 35 of the Constitution on the right to information guarantees this basic idea of electors being seized of adequate information, including criminal and financial history of the candidates, in exercising their freedom of choice as anticipated under article 38 (2) and (3).  This information is pertinent to help the electors make informed decisions on the candidates. Though rarely admitted, it is a fact that previous conduct of the candidates informs their actions once elected. It would therefore be reasonable, within the meaning of article 38 (3) (3) of the constitution, for IEBC to restrict participation of candidates in elections based on their criminal background and financial probity (including tax compliance and indebtedness to public institutions).

Moreover, as aspiring public/state officers, candidates for elective positions must address themselves to the strict requirements of article 73 of the constitution and the wider chapter six on leadership and integrity. This requirement calls for high standards of probity on the part of public officers. Candidates with vexing criminal record and wanting financial history can hardly meet this test. The IEBC, being a public institution, cannot itself justify failure to enforce these requirements. 

It is important to note that even though the Elections Act, 2011 has not expressly addressed itself to these constitutional requirements, it accords the IEBC express powers to formulate such laws and regulations that will guide proper conduct of nominations and elections. In particular, section 109 (1) (c) of the Act mandates IEBC to make regulation that;

        ‘...provide for the regulation of the process by which parties nominate candidates for elections’

This power is to be exercised by the IEBC by formulating regulations ‘at least six months’ to the general elections in terms of section 109 (3). It is within this context that the IEBC must take the initiative and formulate regulations that will guide political parties in undertaking nominations while insisting on ‘cleaning’ politics in Kenya. Inevitably, the regulations must incorporate need for potential candidates to mandatorily declare their criminal background and financial probity.

4.      Comparative Jurisdictions on this Issue

In taking this pragmatic step, the IEBC will be playing its rightful role in ensuring transparent and credible elections in Kenya while also drawing on best election practices worldwide. We opine that IEBC will also be saving the country of pre-emptive litigation which may delay elections purely on this issue. Undoubtedly, the best experience is from India, the world’s best biggest democracy. Several jurisdictions have implemented this requirement including Australia, Canada and the UK. But perhaps the best example for Kenya on this issue in recent times is India. In a precedent setting ruling, India’s Supreme Court in the Union of India –vs- Association of Democratic Reforms & Another (Civil Appeal No. 7178/2001) had this to say while directing the Electoral Commission of India (ECI) (Kenya’s equivalent of IEBC) to amend its electoral rules;

 Under our constitution, Article 19 (1) (a) provides for freedom of speech and expression. Voters’ speech and expression in case of election would include casting the votes that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Voter’s (little man citizen’s) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law breakers as law makers’ (emphasis added).

 

Subsequent to this ground breaking ruling, the ECI amended its electoral regulations to include the following, which we reproduce here for your ease of reference;

(1)     Every candidate at the time of filing his nomination paper for any election to the Council of States, House of the People, Legislative Assembly of a State or the Legislative Council of a State having such a council, shall furnish full and complete information in regard to the following matters in an affidavit, the format whereof is annexed hereto as Annexure-1 to this order:

a)       Case(s) is/are pending against the candidate in which cognizance has been taken by the court.

b)       Details of the assets (immovable, movable, bank balance, etc.) of candidate, spouse and dependents

c)       Details of liabilities / over dues to public financial institutions and government dues

d)      Educational qualifications (Name of School / University and the year in which

                        the course was completed should also be given.

(2)     The said affidavit by each candidate shall be duly sworn before a Magistrate of

 the First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court of the State concerned.  

(3)      Non-furnishing of the affidavit by any candidate shall be considered to be violation of the order of the Hon’ble Supreme Court and the nomination of the candidate concerned shall be liable to rejection by the returning officer at the time of scrutiny of nominations for such non-furnishing of the affidavit.

(4)     The information so furnished by each candidate in the aforesaid affidavit shall be disseminated by the respective returning officers by displaying a copy of the affidavit on the notice board of his office and also by making the copies thereof available freely and liberally to all other candidates and the representatives of the print and electronic media.

(5)     If any rival candidate furnishes information to the contrary, by means of a duly sworn affidavit, then such affidavit of the rival candidate shall also be disseminated along with the affidavit of the candidate concerned in the manner directed above. Candidates contesting local body elections are required to file similar affidavits.

 

In terms of Section 33A of the Representation of the People Act, 1951, read with Rule 4A of Conduct of Election Rules, 1961, each candidate has to file an additional affidavit in Form 26 appended to the Conduct of Election Rules, 1961, giving information on the following:

 

(a)   Cases, if any, in which the candidate has been accused of any offence punishable with imprisonment for two years or more in a pending case in which charges have been framed by the court.

(b)   Cases of conviction for an offence other than any of the offences mentioned in Section 8 of the Representation of the People Act, 1951, and sentenced to imprisonment for one year or more.

 

What is discernible from the Indian experience is that electoral bodies, in our case the IEBC, have capacity to ensure compliance with important regulations like this. In Kenya’s case, the IEBC has additional powers vide section 109 (1) of the Elections Act to formulate these regulations. We accordingly urge the IEBC to seize the moment and effect these important electoral requirements at all electoral units established in the constitution. In fact with Kenya’s devolved structures, implementation of such regulations would largely follow India’s practise.

5.      Conclusion

In conclusion, there is no doubt that the IEBC has a special role in ensuring that fundamental rights to information, of freedom of choice and expression are given effect in our electoral system. The legal support is already there and what remains is for IEBC to take more proactive steps and implement these requirements. In addition, the overriding need to help the electors appreciate the array of candidates is bestowed on the IEBC. In particular, we propose that IEBC takes the following steps in relation to the next general elections;

a)      To invoke its powers under section 109 (1) (c) and formulate regulations through consultative process to guide nomination of candidates for election into public office.

b)     To inform give effect to the constitution, particularly the chapter on leadership and integrity, by including in the formulated regulations that potential candidates for nomination must be utmost financial probity including not owing anything to public institutions and declaring their assets and those of direct dependants.

c)      To require that potential candidates declare under oath both to their parties and to the IEBC (upon nomination) their criminal history including pending cases and potential sentences.  This information must be shared with the public prior to the elections and, in case of criminal charges that attract sentences of more than 12 months then they are automatically disqualified. 

d)     To require that potential candidates produce tax clearance certificates from the Kenya Revenue Authority (KRA).

e)      To require potential candidates to obtain clearance from Ethics and Anti-Corruption Commission in relation to corruption and related cases.

f)       To require potential candidates to obtain clearance as to their compliance status from the Higher Education Loans Board (HELB) and other public institutions that he may be indebted to.