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By Jabez Oyaro
Good governance is the bedrock of a thriving democracy, ensuring the effective functioning of public institutions and the well-being of the society as a whole. At the heart of good governance lies the concept of political accountability, acting as the vital catalyst that allows the cake of good governance to rise. Just as baking powder enables a cake to achieve its desired texture and form, political accountability plays a fundamental role in shaping a transparent, responsible, and responsive government.
In the past and in recent times, Kenya has been faced with numerous corruption cases.[i] Most of those legal proceedings initiated are against the political class for their misuse of public office for private benefit.[ii] From the NCPB maize scandal, the NYS scandal, the Arror and Kimwarer dam scandal in the past to the most recent KEMSA scandal, this is an unequivocally established practice.[iii] You would expect to see the names in these scandals prosecuted and probably somewhere in jail but that is customarily never the case. Most of them walk away scott-free.[iv] One would then ask, where is the good governance, integrity, transparency, and accountability that all state organs and state officers are bound to by the Constitution?[v]
The Constitution of Kenya 2010 seeks to promote good governance through its sixth chapter on leadership and integrity. The chapter lays down the principles that State Officers should conduct themselves on.[vi] It requires that the conduct of state officers be beyond reproach. This means that under the Constitution, those whose conduct does not bring honour, public confidence, and integrity have no place in the management of public affairs.[vii] The importance of this Chapter cannot be emphasized enough. In Trusted Society of Human Rights Alliance v. Attorney General and 2 others, it was held that Kenyans were very clear in their intentions when they entrenched Chapter Six in the Constitution. They intended that its provisions would be enforced in the spirit in which they included them in the Constitution.[viii] Chapter Six and its provisions are not merely suggestions, superfluous, ornamental or lofty aspirations. Therefore, they should have a substantive bite.
However, the enforcement of Chapter Six has since faced significant setbacks, including the enactment of weak legislation to implement its provisions. The Leadership and Integrity Act of 2012 was enacted to give effect to and establish procedures and mechanisms for the effective administration of Chapter Six and for connected purposes.[ix] The Act establishes a General Leadership and Integrity Code, which is a code of conduct applicable to all state officers.[x] The contents of the code include a requirement for all state officers to respect the rule of law[xi], a declaration that public office is a public trust,[xii]and a requirement for the authority and responsibility vested in a state officer to be exercised in the best interests of the people of Kenya.[xiii] The code requires honesty, efficiency, and professionalism in the discharge of public duties.[xiv] It also requires the financial integrity of all public officials, prohibits the use of public office to unlawfully or wrongfully enrich oneself or others, and requires public officers to exert their best efforts to avoid being in a situation where personal interests conflict, or appear to conflict, with public duties.[xv] The code prohibits public officers from opening or operating bank accounts outside Kenya without the approval of the Ethics and Anti-Corruption Commission and requires public officers to be politically neutral. In addition to the General Code of Conduct, the Act requires each public entity to prescribe a specific leadership and integrity code for the state officers who work in that public entity.[xvi]
Shortly after its enactment, the legislation was challenged in the High Court in Commission for the Implementation of the Constitution v Parliament of Kenya & 5 others.[xvii]The petitioners were challenging the constitutionality of the Act on the grounds that it fell short of the constitutional threshold envisaged in Chapter Six. The main argument was that the act did not establish procedures and mechanisms for the effective administration of Chapter Six as required by Article 80(a) of the Constitution.[xviii] Appallingly, the High Court held that the Act was constitutional because it was enacted lawfully and procedurally and that it is not the court's duty to dictate what laws parliament enacts. According to the High Court, the power of courts to declare a statute unconstitutional was subject to two guiding principles. One is that courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while the unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon the judiciary's own exercise of power is its sense of self-restraint. For the removal of unwise laws from the statute books appeal lies, not to the courts, but to the ballot and to the processes of democratic government.[xix]
Despite the establishment of the Ethics and Anti-Corruption Commission, the enforcement of Chapter Six is still a tumultuous task. This can be attributed to the cabinet's intervention in the Leadership and Integrity Bill.[xx] The cabinet severely mutilated and bastardized the contents of the Leadership and Integrity Bill. The cabinet removed proposed procedures to ensure that persons presenting themselves for election or selection as state officers possessed personal integrity, competence, and suitability as contemplated by the Constitution. It also deleted a proposal requiring a declaration by candidates for public office, of assets and liabilities and, in contravention of the Constitution, introduced amendments allowing state officers to engage in other gainful employment while in office.[xxi] The Commission on the Implementation of the Constitution (CIC) challenged the Cabinet's changes in the High Court. The challenge failed, as the High Court held that there was a general presumption that every Act is constitutional and that the burden of proof thus lies on any person who alleges otherwise.[xxii]
The challenges as to how the court deals with the factual allegations on the basis of which the lack of integrity is claimed can be inferred from the cases presented before the courts. The decisions show that the courts view this as the responsibility of the constitutional or statutory body that was responsible for making the appointment. The courts argue that they lack the means to deal with questions about whether such allegations are correct or not.[xxiii] Fingers cannot then be pointed at the Judiciary for its appalling decisions on such matters. It is only fair to the Judiciary if the lack of a comprehensive mechanism for determining compliance with Chapter Six of the Constitution for individuals seeking appointive and elective positions in State offices is acknowledged.[xxiv]
As Dwight D. Eisenhower put it, the supreme quality for leadership is unquestionably integrity. Without it, no real success is possible, no matter whether it is at a football field, an army or in an office. It is beyond reasonable doubt that Chapter Six is important for the fact that it provides a previously missing standard for judging the quality of public leadership. However, there remains much to do to fully realize the provisions of this chapter. Unfortunately, this may not be possible in the existing political environment. As the discussion on the elements of transformative constitution and constitutionalism will show, transformative constitutions depend fundamentally on how political leadership implements them.[xxv] It is clear that the lack of a mechanism to enforce the integrity provisions under the Constitution has been a major hindrance to the implementation of Chapter Six. There is little hope that it is anything but very difficult for the courts to uphold Chapter Six through litigation. Shall we then be another graveyard of a beautifully written constitution honoured more in breach than compliance?
[i] Purity Mukami, Juliet Atellah, Kira Zalan and John-Allan Namu, 'Kenya: Institutionalised Theft and the High Cost of 'Budgeted Corruption'', The Elephant, 13 August 2021<https://www.theelephant.info/features/2021/08/13/kenya-institutionalised-theft-and-the-high-cost-of-budgeted-corruption/ > on 4 October 2023
[ii] Kipkoech Cheruiyot, 'The Fight Against Corruption and Economic Crimes in Kenya: The Plight of EACC and Its Lack of Prosecutorial Powers', SSRN, 8 June 2022 < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4120443> on 4 October 2023
[iii] Jacob Onyango, '15 mega corruption scandals in Kenya which have never been resolved' Tuko, 23 May 2018 <https://www.tuko.co.ke/274539-15-mega-corruption-scandals-kenya-resolved.html> on 4 October 2023
[iv] Jacob Onyango, '15 mega corruption scandals in Kenya which have never been resolved' Tuko, 23 May 2018 <https://www.tuko.co.ke/274539-15-mega-corruption-scandals-kenya-resolved.html> on 4 October 2023
[v] Constitution of Kenya (2010), Article 10
[vi] Constitution of Kenya (2010), Article 73
[vii] Constitution of Kenya (2010), Article 73
[viii] Trusted Society of Human Rights Alliance v Attorney General and 2 others, Petition 229 of 2012, Judgement of the High Court (2012) eKLR
[x] Leadership and Integrity Act (No.19 of 2012, Section 6
[xi] Leadership and Integrity Act (No.19 of 2012, Section 7
[xii] Leadership and Integrity Act (No.19 of 2012, section 8
[xiii] Leadership and Integrity Act (No.19 of 2012, Section 9
[xiv] Leadership and Integrity Act (No.19 of 2012, Section 11
[xv] Leadership and Integrity Act (No.19 of 2012, Section 12
[xvi] Leadership and Integrity Act (No.19 of 2012, Section 37
[xviii] Constitution of Kenya (2010), Article 80(a)
[xix] Commission for the Implementation of the Constitution v Parliament of Kenya and 5 others, Petition 454 of 2012, Judgement of the High Court (2013) eKLR
[xxi] Faith Muiruri, ' Cabinet on the spot over defective leadership Bill' The Link, September 2012, Issue no. 95
[xxiii]Africa Centre for Open Governance (AfriCOG), Integrity in Leadership? An assessment of Kenya's performance in enforcing constitutional values, AfriCOG, 2015, 15
[xxiv] Titus Gitonga, 'Ten years of implementing chapter six of the Constitution of Kenya', Transparency International Kenya, 23 October 2020, < https://tikenya.org/2020/10/23/ten-years-of-implementing-chapter-six-of-the-constitution-of-kenya/ >
[xxv] Willy Mutunga, 'Transformative constitutions and constitutionalism: A new theory and school of jurisprudence from the global south' 8(2) The Transnational Human Rights Review (2021) 2
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