Courts must raise the integrity bar

Last Friday the Supreme Court issued a verdict in the intriguing and long-running impeachment case of Mike Mbuvi Sonko as Nairobi Governor.

In confirming that the impeachment of Mr Sonko was constitutional and thus disqualifying him from running for the Mombasa governor seat, the Supreme Court reaffirmed that Chapter Six is impactful and guides leadership aspirations.

The statement was a welcome break from the recent events in the run-up to the August elections, which seem to point to the reverse.

The Ethics and Anti-Corruption Commission (EACC) submitted a list of over 200 aspirants to the Independent Electoral and Boundaries Commission (IEBC) recommending that they be barred from running. The EACC’s concern was the non-adherence to Chapter Six of the Constitution on leadership and integrity.

The fact that only two out of those in the list were initially debarred by the IEBC but were eventually allowed to run by the courts coupled with the conflicting decisions that have been coming out of the courts sparked scepticism as to whether the Supreme Court would rise to the occasion in the Sonko case.

To be fair, the challenges around the integrity of elected leaders started when the National Assembly passed the Leadership and Integrity Act in the run-up to the 2013 elections.

The provisions of the law that one needed to have been convicted before they could be stopped from vying while requiring other public servants to obtain clearance as a condition for appointments led to different standards for appointed and elected officials. The result is that Chapter Six became practically inapplicable to elected leaders.

A few months ago, there was a huge concern that the country risked being led by people of questionable character. The biggest implication of this is the same leaders are expected to oversee the governance of the country. One of their most important tasks once elected is to vet those appointed to serve as Cabinet Secretaries and Principal Secretaries.

They will then judge whether such leaders meet the integrity requirements under the Constitution. It is ironical to expect those who are not judged by some standard to insist on others meeting those same standards.

The institutions charged with implementing Chapter Six of the Constitution have all been passing the buck, each of them arguing it is not the weakest link in the chain. While the courts have been hailed for giving meaning to the transformative provisions of the Constitution, on issues of integrity, they have lowered the bar.

The starting point was the ruling in the run-up to the 2013 elections in favour of the President and the Deputy running. The reasoning in the case has made it difficult to hold leaders to the integrity standards in later cases. It is therefore reassuring that in the Sonko case they restated that Chapter Six is alive and applicable in Kenya.

This is further reinforced by a decision by the Court of Appeal stating that the provisions in the Constitution on those with pending appeals being given a chance to exhaust those appeals are not to be used as a shield against being held accountable.

Courts have also given conflicting decisions on the question of academic qualifications — from who is responsible for confirming the genuineness of the certificate to whether the degree requirement for certain elective offices is unconstitutional.

The effect of these rulings is making compliance with educational requirements elusive in elective leadership. This makes the Judiciary, which has otherwise continued to be the vanguard of the Constitution, fail in this critical role of defending it against assault from the political class.

Politics has continued to define the Kenyan society. This is partly due to the perks that come with political positions and the power that those elected end up wielding.

Improving the Kenyan society requires holding elected leaders to account. The Judiciary must pick up from the recent statement of the Supreme Court and breathe fresh life to Chapter Six on leadership and integrity.