IMMEDIATE PRESS

Electoral Commission must step in to clean-up Kenya Politics

Nairobi, Kenya March 17, 2015/…International Center for Policy and Conflict (ICPC) is deeply concerned with the widespread concern about the prevalence of corruption in the country especially in the National Legislature and County Assemblies. Corruption is happening because many corrupt persons and criminals are contesting the County Assembly and National Parliament elections and thus becoming people’s representative which they are not rightly so.

Many of them are elected due to their money power and muscle power with intention of seeking political refuge and protection after being elected. It is thus a crucial national need to decriminalize politics, which can happen only by preventing corrupt persons and criminals from entering Parliament and County Assemblies.

Take the cases of many individuals directly or indirectly implicated in corruption scandals or are facing criminal charges and yet they are serving the Parliament and County Assemblies. This is an alarming trend and it is destroying integrity and reputation of the legislature.

Kenyans are concerned that the Independent Electoral and Boundaries Commission (IEBC) is meekly and/or not exercising its enormous constitutional powers under Article 88 of the constitution to prevent criminals and corrupt persons from entering politics. Lawbreakers cannot be allowed to be lawmakers. They will manipulate, compromise and finally destroy national intuitions through their legislative and oversight functions.

Under Article 88 of the Constitution, IEBC has superintendence, direction and control conduct of all elections and its essentials are not comprehensively laid down. This wide amplitude empowers the IEBC to take recourse to address the issue of corruption and decriminalize Kenya politics.

Importantly, it can do so, because in the absence of enabling law (or weak integrity law) , it can interpret and provide the necessary details to fill the lacuna or law is not clear, wherein the jurisprudence can be evolved and empower the Commission. Obviously, the constitution makers have left Article 88 in this way, to pave way for the Election Commission to use its powers to conduct elections in fair and free manner, based on the exigency of the situation and the ground realities.

The Election Commission and its operation form a part of special law and it is significant to understand that by way of its functioning in times of exigency, it is not in contravention of the constitutional laws but it is well equipped and constitutes an appropriate organ. Therefore, the IEBC has the inherent power to bar those persons from contesting election, against whom corruption and criminal charges have been admitted in the court.

The notion of inherent powers is basically a principle of natural law that it remains unchangeable. It is also a virtue of human value. Therefore, it need not be seen as a residual power but values on justice, in the present context electoral justice. The IEBC with its mandate can ensure that decriminalization of politics happens as it falls under the category of exigent situation; secondly, by way of a directive, IEBC can clearly frame the relevant regulations into the subject it has developed.

The IEBC should clearly declare that those accused of crime and corruption cannot contest as that would deem an election not free and fair. Such persons therefore should be barred from contesting in any election. We are concerned that the IEBC appears to give an impression that it would be satisfied if the elections would be conducted in a peaceful manner, irrespective of the fact that it is conducted in free and fair manner. This weak approach of the Election Commission has really emboldened the criminals and corrupt persons to enter into electoral fray.

There is every reason for the IEBC to act firmly, considering the fact that fair elections are a part of human rights. The concept of “free and fair, genuine election/right to vote through the means established in the constitution (free will of the electors)” is also basically a human right as per the international human rights law. Further, the concept of criminalization of politics itself constitutes a crime. The existence of criminals in politics per se will affect the achievement of the objectives of the constitution, where in the victims are the people. Therefore, the subject of criminalization of politics as a matter of crime has to be examined, apart from the offences relating to election and its extended form mentioned in the relevant statutes.

International Center for Policy and Conflict urges the judiciary to look into the objective, intent and purpose of the Chapter Six of the Constitution in order to embolden the IEBC powers of tackling criminality and corruption in politics. The Constitution is an organic/living document; therefore, it should be liberally interpreted, wherein it is to address the needs of the country, tune with the changing times and meet aspiration of the people.

As a constitutional body, IEBC is entitled to take its decision based on its conscience and wisdom, particularly since it is the conscience keeper of the nation.

The IEBC should not be satisfied simply by sending recommendations and thinking that it has done its duty. This is more so because in the present conditions, where public concern and anger about corruption in national life is widespread, it should move beyond obligation and fulfil its larger duty and responsibility.

The fact that there is a silent majority among the people building in the country to bar those persons from contesting elections against whom corruption and criminal charges are admitted in the court, it should spur the IEBC to act, all the more in its realization of its duties and responsibilities towards the Constitution and people of the country.

Signed

Ndung’u Wainaina

Executive Director