AG Muigai backs case seeking clarity on integrity
By ABIUD OCHIENG, published in the DAILY NATION
The Attorney General has thrown weight behind an application seeking an advisory opinion from the Supreme Court on whether aspirants who have been convicted or sentenced in the past can still be allowed to contest for political seats.
Senior Principal Litigation Counsel Emmanuel Bitta on Wednesday told the Supreme Court that the issue was important and that the court has a role to give clarity on the law.
He however urged the superior court to give general guidance and not specific, because specific guidance will depend on individual cases and facts surrounding such cases.
The application was filed by Kenya National Commission on Human Rights (KNCHR) urging the superior court to issue clarity on the matter in light of the fact that both the High Court and Court of Appeal, have taken conflicting positions on the matter while interpreting Chapter Six of the Constitution.
Lawyer Bitta said that a person facing criminal charges who has been acquitted on a technicality cannot claim vindication by the courts.
He however said that the agencies tasked with enforcing integrity, such as the Independent Electoral Boundaries Commission (IEBC) and Ethics and Anti-Corruption Commission (EACC), must independently and objectively review all the relevant facts, evidence and the applicable law defining the integrity issue, in deciding whether a person is compliant with the leadership and integrity as a national value.
“It is also our submission that where a person has been dismissed from office pursuant to a disciplinary proceeding, then that person cannot hold any other state office unless there is a pending appeal or review of the decision as provided for in the Constitution,” lawyer Bitta told the court.
He added that where a person has been convicted or sentenced and is not pursuing an appeal, then such a person is permanently disqualified because it has been proved beyond any reasonable doubt that the candidate lacks integrity.
Where a person is still serving a lawful sentence of imprisonment of at least six months as at the date of registration as a candidate, or at the date of election, then such a person is equally disqualified.
KNCHR through lawyer Nani Mungai of MMC Africa Law, argued that the High Court and Court of Appeal have both shied away from giving a proper interpretation that would give meaning to Chapter Six of the Constitution, while determining related matters which came before them.
“The supreme court needs to clarify the fit and proper test for leadership under Chapter Six of the Cconstitution in light of the conflicting and confusing case law that has built on the issue,” said lawyer Mungai.
KNCHR said that the advisory opinion is crucial in light of the fact that the country is in an election year and some of the persons who are responsible for ensuring that public funds are lawfully and properly applied have offered themselves to be elected.
“Some of the persons who have offered themselves for election in the forthcoming elections have been convicted of offences which involve misuse or misappropriation of public funds or other heinous crimes which negatively impacts on their integrity,” he argued.
Hearing resumes on July 5.