Supreme Court has denied to rule on integrity for holding office
A pertinent question arises as the nation marks the first ten years in August of the implementation of the new Constitution. Has the purpose for which Chapter Six on integrity has sufficiently served? It is hard to say that public leaders should be beyond reproach like Caesar’s wife.
This is why Kenyans issued the new Constitution with a leadership and integrity chapter on August 27, 2010. Chapter Six provides the criterion for nomination and election to the State Office for personal integrity. The main goal is to increase public accountability.
As the country celebrates 10 years in August of the implementation of the new constitution, the relevant question arises: the purpose for which Chapter Six was enacted has been sufficiently satisfied.
Kenyan leadership and integrity between state and public authorities still suffers severe deficits. It cannot be denied. These indicate challenges in Chapter Six implementation.
Though some of the obstacles might be identified as various problems, such as weak statutory frameworks and public apathy, the main blow was the ruling of the Supreme Court in the 2017 Advisory Opinion Reference 1 of the Kenya National Human Rights Procurator.
The Courts have a duty in Article 259 to interpret the Constitution so that its ends, values and principles may be encouraged and law development may be enhanced, and good governance can be promoted.
The gaps in the Leadership and Integrity Act of 2012 cannot therefore be an excuse for Chapter Six when electing individuals as public servants to be not fully applied. The courts have the inherent competences to unlock it to clean up our policy effectively.
Although superior courts have registered sound jurisprudence in several other aspects of the fight against corruption including in the case the Supreme of Court failed Kenyans when it was called upon to interpret and develop jurisprudence on this chapter in the cited advisory opinion.
The KNCHR, EACC, the IEBC and other agencies had moved to the court in 2017 to render an advisory opinion and provide guidance on the test of integrity required for election or appointment of persons to office.
The thrust of the case was that the High Court and the Court of Appeal had interpreted the chapter in a restrictive, conflicting, inconsistent and incoherent manner, resulting in a confused jurisprudence.
Although the courts have generally recognised the need to implement and observe the chapter, the various decisions have so far been contradictory, inconsistent, and incoherent. They don't offer any clear or conclusive determination of the proper integrity test.
This, coupled with the weaknesses in the Leadership and Integrity Act, has remained the major obstacle to effective implementation. There was thus an urgent need for guidance by the apex court.
Before the matter was heard, activist Okiya Omtata, an interested party, raised a preliminary objection contending the court had no jurisdiction to render the sought advisory because there were two related petitions pending before the High Court.
In a majority decision of 5-2 in February this year, the Supreme Court rendered its ruling. It allowed the preliminary objection, effectively declining to hear the matter citing lack of jurisdiction. The majority bench cited the two petitions that have been pending in the High Court since 2017.
In the dissenting opinions, however, Justices Isaac Lenaola and Mohammed Ibrahim argued that the court indeed had jurisdiction to hear the matter and that it was of great importance for it to provide guidance on how the chapter should be applied.
In his dissenting opinion, Justice Lenaola said: “I, therefore, find, without hesitation, that time am ripe for consideration and direction by the Supreme Court on the applicable criteria under Chapter Six of the Constitution.
An invitation for this court to down its tools for lack of jurisdiction should not to be permitted; as such an action would occasion an injustice to the wider public interest.” “One of the issues that I would have expected this court to render an advisory opinion on, is this: Whether Chapter Six of the Constitution sets up a fit and proper test for leadership including elective and appointive offices; and if so, what is that test?”Lenaola further asked. Justice Ibrahim adopted this dissenting opinion.
The dissenting voices are a clear indication of what Kenyans yearn for and an affirmation of a good opportunity that arose to resolve the jurisprudential confusion that has impeded the effective enforcement of the Integrity chapter since 2010.
The highest court acknowledged several of its previous decisions where it has affirmed its unfettered discretion regarding when to exercise jurisdiction and render advisory opinions.
As observed by the dissenting judges, this was a proper case where the scales of justice should have tilted towards the exercise of jurisdiction, considering the great national importance and overwhelming public interest in the effective implementation of Chapter Six.
The Supreme Court, as the final arbiter in Kenya, should have given direction, guidance and breathe life into this matter. In this case, its act of deference, with tremendous respect, denied Kenyans a hand in the quest to hold political leaders accountable.
The question as to how Kenyans, stakeholders and other oversight institutions have promoted or implemented Chapter 6 of the Constitution, to date, is critical. The sovereign power belongs to the people of Kenya and one of the ways to operationalize it is through the ballot.
It cannot be denied that in the 2013 and 2017 general elections, citizens did not critically assess and conduct social accountability or vetting to ensure that only leaders with the highest level of integrity accessed public office.
Although it can be safely argued that citizens were not sufficiently empowered to discharge this cardinal responsibility, much more diligence was required of them when electing persons to office. On the other hand, the civil society and the media have been key actors in the social accountability discourse.
Though, their reach and impact is also limited. Various oversight institutions have made notable effort to enforce Constitution. However, those efforts have not borne much fruit due to major gaps in the legal framework for operationalization.
The above state of affairs left the country with the Judiciary, which by virtue of its constitutional power and mandate could effectively determine the course that Chapter 6 would take.
I pause here and note that enactment of a Constitution does not stop at promulgation. It continues through purposive interpretation guided by a country’s changing needs and historical experiences, and Courts have inherent powers in this regard.