Chapter Six Doesn’t Bar Ruto And Uhuru
Wednesday, November 7, 2012 - 00:00 -- By PHEROZE NOWROJEE
Uhuru Kenyatta and William Ruto are not barred by the Constitution from standing as presidential candidates in the forthcoming election.
It is an error to think that Chapter Six of the Constitution bars them. Articles 73 – 80 thereof are relied upon to exclude them. Closer scrutiny of these provisions is therefore required.
Art.73 does set out the guiding principles of leadership and integrity, and the manner in which authority is to be exercised. But it and Chapter Six apply generally only to State officers. “State officers” are those who hold ‘State office’.
‘State office’ is defined as any of certain specified offices. (Art.260). These include the offices of the President, the Cabinet Secretaries (Ministers), MPs, judges, county members, governors, and offices established and designated as such by Parliament.
The ‘office’ of a presidential candidate is not included in this list. Nor has Parliament designated it so. As is obvious, a candidacy is not an office and would not attract Chapter Six. As candidates, Uhuru and Ruto are not State Officers. And Chapter Six does not apply to those who might become State officers in the future.
Chapter Six does not end there. Its concluding article, Art.80, does allow Parliament to pass legislation to “establish procedures and mechanisms for the effective administration of this Chapter,” (Art.80(a)) and “make any other provision necessary for ensuring promotion of the principles of leadership and integrity referred to in this Chapter and the enforcement of this Chapter.” (Art.80(d)).
This could lead to checks on candidates. But the present Integrity Bill does not make significant provision for that. Is it then in violation of the Constitution? The matter is in Court.
Art.75(1) is an important gauge for the conduct of candidates. It provides that a State officer shall conduct himself in a manner that avoids conflict of interest between personal interests and public official duties; avoids compromising any public interest in favour of a private interest; avoids demeaning a State office. But an important gauge is not a bar, unless expressly stated to be so. There is no such express statement against candidates.
What a large section of public opinion is saying is that if a presidential aspirant, who is charged at The Hague with particularised conduct that both nationally and internationally constitutes grave crimes carrying moral turpitude, persists in standing for the highest office in Kenya, it is demeaning Kenya.
By standing, instead of stepping aside voluntarily, he breaches the public trust vested in him not only by our country, but also by all our ethnic groups.
And if he persists, despite a large expressed opinion that this is not wanted, then it is also a conflict between his personal interests and the public and national interest. Such candidates are not desirable.
This conflict impacts directly and adversely on all Kenyans. It does not benefit its majority. The candidacy in such circumstances is not even for the benefit of the broad mass of the ethnic group of such a candidate. It is for the candidate’s own interests.
And those of the small economic and social elite that flatter and batten off such candidacies. It is certainly not for the benefit of other Kenyans.
There is already a mechanism in the Constitution to deal with such candidates. It is Art.38. It is to refuse to vote for them. The reason for the vote being the remedy is that it is neither democratic nor desirable that one person or a few persons – whether the Director of Public Prosecutions or the Registrar of Political Parties or one or a panel of judges – decide on whether a candidate is a suitable person to stand for State office.
The great mischief that such a situation could give rise to, is obvious. A few individuals cannot disenfranchise millions. It is contrary to democratic principles. It is contrary to the Constitution. It is for the people to decide.
Even in the face of the candidates’ subversion through a well-oiled propaganda machine with very deep pockets buying individuals and media and inciting ethnic nationalisms in support. This is fascism. We have to reject both, candidates and such programs.
For, at election time it is not a few individuals, not some anti-corruption body, but the public as the electorate, that becomes the enforcer of the values in Art.10, And it is both duty and self-preservation, that we voters reject those candidates for president who, even before they have reached that office, keep violating every value in our Constitution and our traditions.
History will not remember you for your IQ. It will remember you for what you did. “Genius is 1 percent inspiration, 99 percent perspiration.” Thomas Edison