Landmark Decisions Shaping the Future of Kenya’s Politics and Public Service Governance

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The Kenyan Judiciary

By David Indeje

“Courts are critical for the interpretation of the Constitution, clarifying its meaning and harmonising its provisions. Courts protect the Constitution, help to develop its rules and enforce its provisions,” Yash Pal Ghai & Jill Cottrel Ghai, Kenya’s Constitution: An instrument for Change.

Kenya through its institutions must continue to nurture the rule of law by committing to enforce all laws and embracing constitutionalism. In this regard, the government should continuously pass enabling legislation to realise these values and align other laws with the Constitution of Kenya 2010. In particular, laws touching on strong leadership and integrity as required under chapter 6 of the constitution.

It should not be forgotten that the constitution has entrenched a culture of accountability and includes democracy and people’s participation, the rule of law, inclusiveness, social justice, human rights and non-discrimination among other national values and principles of governance that the state and its officials must abide by and respect when applying and interpreting the constitution.

“Lack of integrity and unchecked powers are some of the main reasons that hold Kenya down in the ranks of the global corruption index and the global leadership index,” Writes Prof. PLO Lumumba and Luis Franceschi, The Constitution of Kenya 2010: An Introductory Commentary on Leadership and Integrity.

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As a result, they argued that The Leadership and Integrity Act No. 19 of 2012 ‘fell short of the Constitutional threshold required of any statutory law contemplated under Article 80’.

“Legislation on leadership is necessary to provide clear guidelines for leaders in the exercise of their functions. Lack of clarity may lead to impunity and arbitrary rule,” they write.

Quoting the South African Constitutional Court in the case of Doctors for Life International v The Speaker National Assembly and Others, the court stated that, “…legislation must conform to the Constitution in terms of both content and the manner in which it is adopted. Failure to comply with the manner and form requirements in enacting legislation renders the legislation invalid. And courts have the power to declare such legislation invalid.”

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In Kenya, the Constitutional Court has made bold and landmark decisions in strengthening Chapter Six of the Constitution of Kenya 2010 in shaping the future of Kenya’s politics and public service governance.

One, the Constitutional Court composed of Justices Joel Ngugi, Mumbi Ngugi and Vincent Odunga in the Petition challenging, questioning the Constitutionality of the appointment of Mr. Mumo Matemu as the chairperson of the Ethics and Anti-corruption Commission (EACC) – High Court Petition No. 229 Of 2012. Trusted Society of Human Rights Alliance –Vs- The Attorney General & Others.

The Court by its decision has stated on the question of integrity that :

“A person is said to lack integrity when there are serious unresolved questions about his honesty, financial probity, scrupulousness, fairness, reputation, soundness of his moral judgment or his commitment to the national values set out in Article 10 of the Constitution. That for the purposes of the Integrity test in the Constitution, there is no requirement that the behaviour, attribute or conduct in question has to rise to the threshold of criminality.  That the fact that a person has not been convicted of a criminal offence is not dispositive of the inquiry whether they lack integrity or not. That it is enough if there are sufficient serious, plausible, allegations which raise substantial unresolved questions about one’s integrity.”

Two, Case Number: Criminal Revision 25 of 2019: Moses Kasaine Lenolkulal V Director of Public Prosecutions.

In this case, Justice Mumbi Ngugi instructed that elected executives cannot continue to attend office when facing corruption-related charges.

Section 62 of the Anti-Corruption and Economic Crimes Act of 2003 requires that public officers be paid half salary until the case is heard and determined.

However, County Government Governors allegedly accused for various cases, opted to rely on Section 62 Subsection 6 of the same act that provides: “This section does not apply with respect to an office, if the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated.”

Justice Mumbi Ngugi found that the provision: “Violates the letter and spirit of the Constitution…Chapter 6 on Leadership and Integrity saying that in releasing a governor in a criminal case, conditions must be imposed that protect the public interest.”

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In her ruling, she posed:

“Would it serve the public interest for him to go back to office and preside over the finances of the County that he has been charged with embezzling from? What message does it send to the citizen if their leaders are charged with serious corruption offences, and are in office the following day, overseeing the affairs of the institution? How effective will prosecution of such state officers be, when their subordinates, who are likely to be witnesses, are under the direct control of the indicted officer?”

According to Justice Mumbi Ngugi’s ruling, “Under the provisions of the County Government Act, where the Governor was unable to act, his functions were performed by the Deputy Governor. That was provided for in section 32(2) of the County Governments Act. The Governor in the instant case was not being removed from office.  He had been charged with an offence under Anti-Corruption and Economic Crimes Act (ACECA), and a proper reading of section 62 of ACECA required that he did not continue to perform the functions of the Office of Governor while the criminal charges against him were pending. However, if section 62(6), which violated the letter and spirit of the Constitution, particularly Chapter Six on leadership and integrity, was to be given an interpretation that protected the applicant’s access to his office, then conditions had to be imposed that protected the public interest. That was what the Trial Court did in making the order requiring that the applicant obtained the authorisation of the CEO of EACC before accessing his office.   In the circumstances, there hadn’t been an error of law that required that the instant Court revises the said order.”

Article 73 of Chapter 6 of the Constitution stipulates that the guiding principles of leadership and integrity include;

  1. a)     Selection on the basis of personal integrity, competence and suitability or election in free and fair elections
  2. b)    Objectivity and impartiality in decision making and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices.
  3. c)     Selfless service based solely on the public interest demonstrated by:
  •   Honesty, in the execution of public duties and
  •   The declaration of any personal interest that may conflict with public duties 
  1. d)    Accountability to the public for decisions and actions
  2. e)     Discipline and commitment in service to the people

The above court’s decisions in the two cases is a wakeup call to all who hold public office as public servants, elected leaders in the executive-legislative and judicial arms of government who continue to institutionalize corruption, incompetence, impunity, tribalism, nepotism, plunder of public resources as the instruments of self-advancement and oppression of the citizens of Kenya.

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The Promises and Dreams of ordinary Kenyans embodied in the Constitution of Kenya 2010 may, after all, have a guardian angel in the Reformed Judiciary of Kenya.

 

 

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