A number of leading politicians battling corruption, economic crimes and hate speech cases in court, may be barred from contesting elective seats in next year’s elections.
A multi-agency team (MAT) comprising of the National Cohesion and Integration Commission, (NCIC), the Ethics and Anti-Corruption Commission (EACC) and the Director of Public Prosecutions are part of a team gathering information, with a view to bar politicians facing graft and hate speech from seeking elective positions.
The MAT, crafting a road map for the 2022 General Election has proposed that politicians battling criminal charges and those facing ethnic contempt litigation, be barred from participating in the polls.
The agencies have separately termed as frustrating the legal principle that every person accused of any crime is presumed innocent until proven guilty.
Article 99 of the Constitution disqualifies a person from being elected a Member of Parliament, if the person is subject to a sentence of imprisonment of at least six months, as at the date of registration as a candidate, or at the date of the election.
However, the law has a rider that a person is not disqualified unless all possibility of appeal or review of the sentence has been exhausted.
This loophole, the agencies argue, is a stumbling block to their efforts to nail graft suspects and has allowed individuals charged with offences, to seek elective seats despite their cases going on in court.
NCIC is working with the Independent Electoral and Boundaries Commission (IEBC) to enact regulations, which will make it mandatory for those seeking elective seats to obtain social cohesion certificates before they are cleared to run for office.
At the same time, EACC is working with IEBC to ensure all aspirants who will be cleared to run for office, meet the threshold of the Leadership and Integrity Act, 2012.
In the past, candidates for various political seats have capitalized on the principle of presumption of innocence to get clearance from EACC and the electoral body.
“The provisions in law allowing leaders facing charges in court to exhaust all appeal mechanisms have been abused,” EACC Chief Executive Twalib Mbarak said.
He added: “EACC in collaboration with IEBC wishes to make its intention clear that we will bar politicians with questionable integrity issues from participating in the polls.”
In a recent roundtable meeting with MPs at the Kenya Institute for Curriculum Development, the anti-graft agency bosses blamed the law for frustrating their efforts.
“People keep asking us, why did we clear so and so. Our Constitution says you can only be barred from occupying a public office when all legal avenues have been exhausted,” Mbarak said.
In the run-up to 2013 and 2017 polls, there was no structured framework to ascertain the integrity of candidates since they were only required to fill a form declaring themselves fit to hold public office.
As a result, politicians facing charges of forged academic papers still found themselves on the ballot since they are yet to be convicted.
Justice Mumbi Ngugi had in 2019 ruled that governors facing graft charges be barred from accessing office. However, the affected county bosses have remained in office despite the court decision.
So far, the ODPP has charged nine governors and they are still in office.
Ugunja MP Opiyo Wandayi, who chairs the National Assembly Committee on Public Accounts committee (PAC) has proposed amendments to Sections 23, 24, and 25 of the Elections Act to bar persons charged with corruption and other economic crimes from running for office.
If MPs approve the proposed changes to the laws on elections, leadership and integrity, aspirants with active court cases will be barred from running for the position of President, Member of Parliament, or Member of the County Assembly (MCA).
About 15 serving MPs have ongoing graft and other economic crimes-related cases in court, whereas at least seven MPs are currently in court over hate speech related charges.
If enacted the bill will go a long way is deterring corruption perpetrators and protect public resources.