Good news for those members of parliament and aspirants with the pending civil or criminal court cases. The Ethics and Anti Corruption Commission (EACC), established under article 79 of the constitution and charged with the responsibility of ensuring compliance with and enforcement of Chapter 6 of the constitution on leadership and integrity has stated its position on the eligibility of candidates with pending court cases to run in the next election.
The EACC position is that candidates with ongoing court cases can vie for elected office public office come 4th March 2013. The vice chair of the Commission clarified that the law only bars those convicted of unethical offenses (are there any ethical offenses?) and who have finalised all appeals from running for office.
The EACC bases its position on sections 24 (3) and 25 (3) of the Election Act, 2012. Both of sections provide with regard to aspirants for the position of member of the national assembly and county assembly that ‘a person is not disqualified from being elected…under sub section 2, unless all possibility of appeal or review of he relevant or decision has been exhausted.”
Sub section 2 of both provisions provides for disqualification from being elected to the national or county assembly for a number of reasons the most interesting of which is where one has been found to have, “misused or abused a State office or public office or to have contravened Chapter Six of the Constitution.”
While this is the law the EACC’s position and the application of this law is problematic in several ways:
The EACC is charged with seeing to the implementation and enforcement of Chapter 6 of the constitution. Chapter 6 requires that leaders, holders of public office be selected on the basis of personal integrity, accountability, competence, suitability and that leaders act in a way that, demonstrates respect for the people, brings honour to the nation and dignity to the office, promotes public confidence in the integrity of the office.
One would think that having pending court cases whether civil, criminal or for abuse of office would so call the above qualities into question, and that if EACC really implemented and enforced chapter 6 requirements for leadership and integrity it would preclude those with pending court cases from running for public office.
The position is also logistically problematic, for instance what would happen if an aspirant had civil or criminal action brought against them, and the case was still pending during the time in which they were running for public office. How would it work if said the person were to win the seat and then the pending case decided against them even in the court of last instance. Would they be allowed to stay in office with a conviction or would they be impeached and an expensive by election called?
Not to mention the numerous conflict of interests that would arise from having aspirants with pending cases running in an election, were they to win the seat for which they were running would they attempt to use the influence of their new office to influence the outcome of their pending case. If an aspirant involved had a civil action determined against them for millions of shillings would they attempt to use public coffers to cover the judgment?
Thoughts should aspirants with pending cases be barred from running in the next election?