The task to lock out candidates with integrity issues largely rests with the voters and not the Independent Electoral and Boundaries Commission (IEBC), according to lawyers and the Ethics and Anti-Corruption Commission (EACC).
Lawyers who spoke to the People Daily were yesterday unanimous that IEBC could be treading on a rough road in its quest to bar politicians whose names have been forwarded to it for failing to pass the integrity test.
They said weak laws have complicated matters for the polls agency. On the other hand, EACC which submitted the names last week has clarified that it is yet to clear any candidate to contest for the August 8 General Election.
Instead, the commission has insisted that the mandate of clearing candidates lies with other investigative agencies as its work is to hand over declaration forms signed by candidates indicating they have been received.
As if to concur with a cross-section of lawyers, EACC also believes that the task to lock out candidates with tainted image from participating in the General Election squarely rests with the voters after Parliament watered down the clause in the Political Parties Act that would have been used to deal with the issue.
After repealing the Act, MPs opened the floodgates for politicians with cases pending before the courts and investigative agencies to vie for elective positions.
The law also allows those already convicted to vie as long as they have appealed against the ruling. EACC spokesperson Yassin Aila was yesterday categorical that the investigating agencies are the ones to clear the candidates as their only mandate is to forward a list of individuals with accompanying evidence of those who have integrity issues.
His sentiments come after the commission last week submitted 106 names of candidates of various elective positions to IEBC who they want barred from vying in the August 8 General Election.
The EACC report consist of 16 governors, four senators, three women representatives, 25 candidates for member of the National Assembly and 37 Members of the County Assembly.
“The list he submitted to IEBC is in in line with what we have been talking about, the people saying that we have cleared them are not saying the truth, the commission has not cleared a single soul at all.” hes said.
But even as the commission grapples with how to treat the matter, questions are being asked as to whether the commission has any locus standi to bar any candidate from contesting in the General Election.
Article 38 (3) (C ) gives Kenyans the right to vie for any political party which they are part of thus making it impossible for the commission to bar anyone from contesting in the election.
The Constitution reads in part: “Every adult citizen has the right, without unreasonable restriction to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.”
The EACC said the current legislation on Chapter Six is very weak compared to what they had anticipated as MPs watered it down. According to Aila, politicians know that they will have their way as long as they will appeal any case in court as this gives them the guarantee that they can be cleared by IEBC.
“The legislation on Chapter Six is a very weak. It says if you are convicted of a crime you should not hold office but also said as long as you have an active pending case in court you should be cleared,” he said.
And on their part, lawyers and opinion makers said that the commission has no moral authority nor is it backed by any law to bar the candidates and doing so would be in contravention of the law.
The lawyers argued that MPs watered down the laws on Chapter Six thereby rendering the commission toothless while others were of the opinion that as long as there is a window for appeal at the Judiciary, then the action by the commission is an act in futility.
Law Society of Kenya (LSK) chairperson Isaac Okero said that IEBC action may not bear fruit as long as they will not tell the country the methodology, criteria and procedures they followed to bar the said candidates.
Although he said that the problem started after the promulgation of the Constitution where legislation aimed at giving effect of the Constitution were watered down, he was of the opinion that the commission cannot risk making boardroom decisions without involving all stakeholders.
In addition, he also said apart from that, the commission must also remember that the affected candidates have a right to defend themselves. As long as the process is not clear, we do not know the methodology they will use, we are prone to seeing candidates moving to court to stop this whole process,” he said.
Prof George Wajackoya was categorical that IEBC is just wasting its time as it has no teeth, no stature and is not backed by any law to bar candidates.
He said the only person/institution that can deny candidates a clearance certificate is the one charged with a specific mandate and has to do this if there is no appeal pending in court.
“This is just an exercise in futility. Even though the Constitution allows cooperation from other agencies, the commission will not go anywhere with this. They are just wasting our time,” he said.