Enforce law on leadership qualities

Debate on whether politicians who have been committed to trial before the International Criminal Court (ICC) are eligible to run for the presidency or other elective posts in the next general election has gained momentum.

One of the key factors that informed Kenya’s struggle for a new constitutional order was to end impunity that has bedevilled this country for decades and establish new systems of governance firmly based on the rule of law and respect for the people.

Many Kenyans shed blood and others lost their lives and property in the quest to redesign and restructure their government and put therein leaders who could champion virtuous and ethical conduct of our affairs. This is the essence of Chapter Six of our Constitution.

Despite promulgation of the Constitution on 27th August 2010, the country continues to experience a breakdown of the rule of law, human rights violations, ethnic malpractices, grand corruption and economic crimes.

The utterances and practices of a section of our political leaders succinctly manifest that majority of us are not about to change our attitudes and practices even in the wake of the new constitutional dispensation.

Declarations by some political leaders that they will and must contest the presidency or elective posts despite the ICC rulings are sad, regrettable and unfortunate. As the Justice and Constitutional Affairs minister Mutula Kilonzo rightly put it, this would mean that the Constitution that we have struggled for so many years to enact and in particular Chapter Six has no meaning at all.

This has every thing to do with the leaders we elect and Chapter Six is clear on the principles – with or without enabling legislation. The spirit of the chapter is sufficient to set the threshold, in absence of the operationalising Act of Parliament. The court would also pronounce as such if seized of the same matter.

Chapter Six seeks to restore the rule of law in Kenya by providing for leadership and integrity principles , which would ensure transformative and servant leadership based on integrity.

Under Article 73 (1), authority assigned to a State Officer is a public trust that should at all times bring honour to the nation and dignity to the office; promote public confidence in the integrity of the office and demonstrate respect for the people.

Section 7 of the Sixth Schedule to the Constitution provides that “All law in force before the effective date continues to be in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution”

In light of this provision, any law on leadership, governance, ethics, integrity and anti-corruption that existed before the effective date would be deemed to be part of the framework for enforcement of that chapter alongside such other laws as Parliament may enact for that purpose.

Furthermore, the Constitution is in itself law and its letter and spirit must be adhered to. And I refuse to accept that it is the spirit of Chapter Six that accused persons for international crimes meet the high integrity and ethical bar within the meaning of that Chapter.
Moving forward, I suggest as follows.

First, that the accused persons drop their bids for elective posts until cleared by the ICC or unless their respective confirmations of charges are overturned on appeal.

Second, Parliament should move with speed and enact a comprehensive law on leadership pursuant to Article 80 of the Constitution and make appropriate provisions for leadership that meet the constitutional threshold.

Third, as a country we should remain alert and demand integral leadership that would help us realise and enjoy the fruits of the Constitution.
The writer is a lawyer