The Ethics and Anti-Corruption Commission may have thrown the clearance of election candidates into uncertainty with the late submission of a list of those it says have pending integrity issues it contends should be barred from the ballot paper.
The problem is that the list of 106 aspirants was sent to the Independent Electoral and Boundaries Commission well into the clearance process, after hundreds of candidates for various offices — from president to governor, senator, national and county Assembly — had already been cleared and issued nomination certificates.
Those with the certificates are still not officially candidates until their names are published in the Kenya Gazette, but IEBC chairman Wafula Chebukati would provoke a fire storm of protests if he withdraws certificates already issued.
There has been no explanation from the electoral agency or the EACC on why the attempt to enforce Chapter 6 of the Constitution on ethics, integrity and leadership was launched when clearance of candidates was underway.
The action probably indicates a degree of confusion and inefficiency in the country’s two critical commissions, and will also raise suspicion that there may be sinister designs to lock out targeted candidates.
Chapter 6 of the Constitution is not a sudden development.
Indeed in the 2013 elections, IEBC faced criticism for admitting candidates indicted or were under investigation for a variety of offences.
The presumption at the time in many quarters was that the commission failed to act because the most prominent candidates facing criminal charges were Jubilee presidential nominee Uhuru Kenyatta and his running mate William Ruto.
They were amongst the six Kenyans facing crimes against humanity charges at the International Criminal Court, The Hague emanating from 2007/8 post-election violence.
There was the counter-argument, however, that the pair had not been convicted and could not be barred from seeking elective office.
Another argument was that ethics and integrity requirements for public office holders were specific to corruption, not violence, murder or other crimes.
The matter may have become moot once Mr Kenyatta his deputy were discharged by the ICC when they were already in office.
However, concerns remained that the government and various State agencies had conspired to make Chapter 6 unenforceable.
COMPLIANCE WITH LAW
These concerns built up as this year’s elections approached, spurring the formation of a team to vet aspirants.
The team comprises the IEBC and EACC, together with officials from the offices of the Attorney-General Githu Muigai, Director of Public Prosecutions Keriako Tobiko and the Registrar of Political Parties Lucy Ndung’u.
The team assembled late last year was tasked with formulating guidelines and mechanisms to ensure candidates complied with the leadership and integrity provisions of the Constitution, as well as ethics and conduct guidelines under the Elections Act, the Leadership and Integrity Act and the Political Parties Act.
It held meetings with stakeholders and even formulated a check-list of ethical requirements, including securing clearance from organisations such as the Kenya Revenue Authority, Higher Education Loans Board, the Directorate of Criminal Investigations and the Commission for University Education.
The team pledged to establish dedicated service centres to support electoral verification and clearance, and IEBC specifically committed to providing a central coordinating office.
Some progress seemed to have been made when in April this year, the EACC unveiled self-declaration forms that aspirants were to complete and return as part of their clearance.
The forms were to be returned to the anti-corruption commission, but it seems somebody forgot to inform Mr Chebukati’s team when it started clearing the election hopefuls.
But by then, there was already room for suspicion because under EACC chief executive Halakhe Waqo and his deputy Michael Mubea, the commission was increasingly being seen as a willing tool of the Jubilee administration.
On some high profile cases, such as the National Youth Service scandal, it had absolved key suspects while recommending their juniors for prosecution.
In other instances, it had launched investigations under seeming direction to target politicians in ruling Jubilee’s bad books.
The Directorate of Criminal Investigations, headed by Mr Ndegwa Muhoro, appeared to be operating on the same line.
Even agencies like KRA launched tax investigations seen by many to target some of the more voluble opposition politicians, journalists and newspaper columnists who had angered Jubilee.
The germane thing is that when aspirants appeared before the IEBC days ago, the raft of documents they were asked for did not include the self-declaration form and some of the various clearance letters demanded by the anti-corruption commission.
The IEBC was also silent on ethical questions raised by the Senate and the National Assembly on governor candidates seeking or defending their seats while saddled with outstanding audit queries, watchdog committee inquiries or criminal investigations.
This despite Mr Chebukati having expressly stated that individuals under investigations could be denied clearance.
The upshot of it all is that while the attempt to enforce integrity requirements might on the surface seem like a noble idea, it might be time-barred and practically impossible to enforce.
This might speak of either gross incompetence on the part of the agencies involved, or wilful collusion to subvert enforcement of the ethics and integrity code.
Meanwhile, there could be another twist in the tale if it turns out that the EACC list spares controversial Jubilee candidates while targeting those who have rubbed the government the wrong way.