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City lawyer files suit to bar ‘tainted’ aspirants from poll



A Nairobi-based lawyer has petitioned the High Court to block the electoral commission from clearing persons who have active criminal and corruption cases, impeached governors and those with questionable integrity from contesting elective positions. Mr Edward Asitiba wants court to declare that candidates with unresolved court cases involving economic crimes, abuse of office and capital offences should not contest for public office until they have been cleared of such charges.

“The presumption of innocence notwithstanding, the petitioner argues that allowing such aspirants to run for office is to risk having corrupt officials with tainted records hold public offices and the inevitable consequence is increased looting,” he says in the court papers. 

The lawyer says that continued failure by the Independent Electoral and Boundaries Commission (IEBC) to enforce Constitutional provisions on leadership and integrity has kept unfit persons in State offices to the detriment of Kenyans. This, he says, has eroded public confidence and trust in the electoral process and the statutory bodies mandated to protect the interest of citizens.

The Commission also holds that the reports submitted to it by the anti-corruption watchdog on suitability of each election candidate, are not conclusive in determining the fate of a candidate to vie unless backed by an order from a court or a quasi-judicial body.

With regard to successfully impeached governors, the petitioner wants the court to find that they are ineligible for the upcoming elections. He says they should be disqualified from holding and enjoying the benefits of any public office as their integrity is questionable.

“The Ethics and Anti-Corruption Commission and the Commission on Administrative Justice have a duty to the public to vet and bar individuals implicated in corruption and other crimes from running for public/state office,” says Mr Asitiba.

However, the IEBC has since told court in another case that its decision to allow “tainted aspirants” is based on past judgments by courts.

Among the rulings that the IEBC has cited is one in 2013, when the High Court that cleared President Uhuru Kenyatta and his deputy William Ruto to vie for the presidency. At the time, Mr Kenyatta and Dr Ruto were facing charges related to crimes against humanity at the International Criminal Court (ICC).

A civil society group, the International Centre for Policy and Conflict, wanted President Kenyatta and Dr Ruto barred from vying on the grounds that they were tainted. But a five-judge bench ruled that it was unreasonable to limit their rights under those circumstances.

Through its legal and public affairs director, Chrispine Owiye, IEBC said it cannot disqualify an aspirant on the basis of a pending criminal case.

“IEBC is aware of the judgment (in the Uhuru and Ruto case) where a five-judge bench of this court seized of a question bordering on eligibility to vie for elections by individuals facing criminal charges,” said Mr Owiye.

“From this court’s rendition in that case, application of presumption of innocence in considering whether to nominate a candidate to vie for elections or not is not a myth but a Constitutional imperative.”

IEBC added that integrity, morality and ethics have not been conclusively defined. Regarding integrity, the court is guided by another judgment delivered in 2012 where the High Court explained that integrity, as conceived under Chapter Six of the Constitution, demands inquiry as to substantial unresolved questions about one’s integrity and that inquiry must not be elevated to the threshold of criminality.

Mr Owiye stated that though IEBC is required to conduct an inquiry on a candidate’s integrity, it is encumbered by lack of its own investigative machinery.

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