MPs suspend integrity and academic laws in March poll

By Geoffrey Mosoku and Peter Opiyo

NAIROBI, KENYA: Enforcement of strident integrity laws and academic qualification as a precondition for running in elections will not apply for the March 4 exercise as had been expected.

This is because it now turns out that Members of Parliament connived to suspend parts of the Elections Act that provided for the academic qualification, and watered down legislation meant to operationalise Chapter Six of the Constitution on leadership and integrity.

The changes MPs made were buried in the raft of alterations they passed as a package under what in parliamentary parlance is called an ‘Omnibus Bill’.

Consequently, the Independent Electoral and Boundaries Commission (IEBC) will not vet aspirants on integrity issues as Kenyans had demanded in the current Constitution, including delving into their past.

The commission will also not ask nominees gunning to be MPs, senators and women and county representatives for their academic qualifications. The demand that you must be armed with a university degree now only applies to those seeking to be governors.

Political parties were informed on Monday that persons seeking positions in the National and County Assemblies would not be required to provide any academic papers before being cleared to contest in the elections.

Section 22 (1) (b) of the Act stated that a person may be nominated as a candidate in an election if he or she holds a post-secondary school qualification recognised in Kenya.

The requirement has been put on hold until the next elections under the Miscellaneous Amendment Act of 2012, with the exception of the candidates for the presidency, governors and their running mates who must have degrees from local universities recognized by the Government.

Attach papers

“No one will be asked to provide post-secondary school education and consequently, IEBC is in the process of receiving the nomination rules once these amendments are gazetted,” Registrar of Political Parties Lucy Ndung’u told the parties.

National Commission on Gender and Equality chairperson Ms Winnie Lichuma said by suspending the law, the IEBC will not require any person to attach academic papers while presenting his or her nomination papers.

The two were speaking on Monday at the Kenyatta International Conference Centre, Nairobi while addressing representatives of various political parties at a forum organised by the Kenya National Human Rights Commission (KNHRC) to explain how it will monitor their nominations to be held before January 18th.

Ndung’u also revealed that IEBC would have a limited role, if any, in vetting the aspirants to ascertain if they meet the integrity test as set out under Chapter Six.

Integrity queries

According to the Registrar, individual candidates and their parties will fill and sign a form from the IEBC and must state that they are not disqualified under any law to contest.

“Once IEBC has received all nominations, then it shall publish all the names of contestants for various seats and it is at this stage that any Kenyan who has integrity queries on a person nominated may petition the commission,” she explained.

It is only when a complaint has been lodged that IEBC would move to investigate the claims made against a candidate. Unlike in past elections the integrity bar for those seeking elective posts in March had been raised, thanks to the provisions in the new Constitution.

Consequently, hundreds of aspirants have been flocking various bodies to seek clearance to vie in the elections.

The bodies are digging into the aspirants’ past to see whether they have criminal records, non-serviced university loans or have been involved in some form of professional misconduct.

But even as the bodies continue with the exercise, concerns are being raised over the ambiguity in law regarding the vetting process.

This follows the watering down of key legislation meant to implement Chapter Six of the Constitution by MPs in the last two years.

Though Chapter Six requires that public officers be people of high integrity, a detailed mechanism that was enacted by Parliament failed to confer legal mandate to relevant bodies to vet aspirants.

Legal backing

This, experts argue, presents a grey area that can be challenged in court, and whose application has been continuously blocked by Parliament.

Already IEBC has asked political parties to ensure their candidates get clearance from relevant bodies. These include the Police, Kenya Revenue Authority, Credit Reference Bureau, Higher Education Loans Board and the Ethics and Anti-Corruption Commission.

An initial provision in the leadership and integrity law gave the bodies the legal backing to clear the aspirants, but was removed by the Cabinet.

Parliament also failed to reinstate the requirement when the law came before it for enactment.

The Law Society of Kenya says this ambiguity may open up legal challenges because IEBC, for instance, would lack the legal authority to bar a candidate because he or she lacks a clearance certificate from HELB.

LSK Chairman Eric Mutua argues that political parties are asking their candidates to get clearance from these bodies out of fear, because other bodies that interviewed public officers set a precedent, and the electoral body might use this to block them.

Messed up

He, however, says there is no clear legal framework to vet the candidates after the Cabinet and Parliament shredded such provisions from the Leadership and Integrity Act.

There is no clear legal framework on vetting because the Cabinet and Parliament messed up the integrity law,’’ he explained.

Parliament failed to outline a framework to guide the public and the candidates on how to conduct vetting, so the specific legal framework is wanting,” adds Mutua.

He says parties were relying on precedents set by bodies such as the Judicial Service Commission when interviewing judges, and various panels that have interviewed various commissioners.

“Political parties are just being guided by certain trends set by some institutions that vetted candidates for public office such as JSC.

So political parties just borrow from these panels because they fear IEBC may use this to block them,” says the lawyer.

LSK chief executive Apollo Mboya says should any aspirant be blocked, any one could go to court and seek interpretation, and that IEBC might ask for information on candidates from any institution, including professional bodies.

Legal teeth

But he concurs there is no clear framework for vetting.

“Everybody is looking at Chapter Six of the Constitution, but there is no way you are going to get a clear way to do it,” says Mboya.

The chairman of the Parliamentary Committee on Justice and Legal Affairs, Njoroge Baiya says the Committee’s attempt to give legal teeth to these bodies were thwarted when Parliament rejected the move, opening up room for ambiguity.

“There is an ambiguity because one can say there is no law giving IEBC powers to bar an individual from vying because he or she has not been cleared by another body,” argues the Githunguri MP.

Last October three constitutional bodies said they would jointly vet those seeking elective positions. The Commission on Administrative Justice, The Ethics and Anti-Corruption, the Commission and the Director of Public Prosecutions were to carry out the exercise.

Commission for the Implementation of the Constitution filed a case in Court challenging the Leadership and Integrity Act as passed by Parliament.