The constitution enshrines both the right to run for political office and the standards for leadership and integrity.
In Article 38 the constitution provides, “Every adult citizen has the right, without unreasonable restrictions, to be a candidate for public office…and, if elected, to hold office.” The whole of the Chapter 6 provides the principles for leadership and integrity for those in, and those who aspire to state or public office. And in Article 10 the constitution lists integrity as one of the national values and principles of governance that bind all State organs, State officers, public officers.
Under ordinary circumstances the two provisions i.e. the right to run for public office and the requirement of integrity, would not be in conflict, nor would there be an issue about which provision supersedes the other. In fact it seems almost intuitive that the right to run for public office would be contingent on the candidates meeting the integrity requirements as enshrined in the constitution i.e. that one’s ability to run for public office, would be subject to the person in question meeting the constitutional standards on leadership and integrity.
However we are not in ordinary circumstances, two of the country’s presidential aspirants will also be facing trial at the International Criminal Court (ICC) for alleged committing crimes against humanity during the 2007/2008 post election violence. In these extra-ordinary circumstances, (extra-ordinary because Kenya will be the first country in the world that has ICC suspects simultaneously facing charges and running for President) two schools of thought have emerged.
The first school that the two presidential candidates are innocent until proven guilty and therefore should be able to exercise the right to run for public office. The second is that by virtue of being ICC suspects the integrity of the two aspirants is so called into question that they are prohibited from exercising the right to run for public office by virtue of the requirements of integrity enshrined in Chapter 6 and Article 10 of the constitution.
None of the mandated bodies i.e. Independent Electoral and Boundaries Commission, the body in charge of the elections, nor the Constitution Implementation Commission, the body charged with overseeing constitutional implementation have given definitive direction on whether a person facing criminal charges, or crimes against humanity can still exercise the right to run for public office.
Last week the Attorney General petitioned the Supreme Court to give an advisory opinion on the integrity requirements in the constitution vis a vis the right to run for public office. The Supreme Court is yet to give its advisory. Parliament has attempted to water down the constitution’s requirements on leadership and integrity by passing a weak Leadership and Integrity law. However the Judiciary has taken a pretty strong stand with regards to application of the constitution’s leadership and integrity provisions as evidenced by the judicial ruling nullifying the nomination of Chairperson of the Ethics and Anti-Corruption Commission, and the tribunal ruling in the case of the Deputy Chief Justice. So one hopes that a similar standard will applied across the board.
In any case we’ll be watching.