August 25, 2011 Mad Hatter


Reading the Daily nation on 23rd August 2011,Moses Kuria the PNU Spokesperson attempted to interpret the Kenyan constitution as not expressly barring persons under a criminal trial from vying for a political office. He alluded to a legal cliché that one is innocent until proven guilty, and Kenyans facing trial in the ICC should be treated as such, even in regard to their political ambitions. Indeed, read with a sectarian intent, the Kenyan constitution does not have any provision barring someone under a trial from seeking office.
The provision on article 99 (3) which provides that A person is not disqualified under clause (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted, would equally appear as a lifeline to the political aspirations of any accused persons.
The assumption however, that this would not invalidate the candidacy of any of the six is false and legally wrong. Confirming the charges wound render the persons unable to vie, and to Kuria’s surprise, even their continued hold onto public offices is an upset of the constitution.
To appreciate this, it is worth revisiting the sub structural cardinal as to why restriction is placed on the possibility of persons with Criminal inclinations seeking elections. Basically, leadership and the concept of a “good citizen” are inseparable. Good in our sense is a legal vindication that the character of the person seeking the office is worth. The question of leadership is an issue of public interest, which should at all instances be differentiated from public opinion. One is admissible as a reason for a judicial decision and the other is just that, an opinion. The Constitution of Kenya confirms this when it asserts: That Authority assigned to a state office – (a) is a public trust to be exercised in a manner that-
(i) Is consistent with the purposes and objects of this constitution.
There are instances, indeed one in this very case where public interest overrides personal rights which right in this case is the doctrine of being innocent until proven guilty. In regard to privileges and rights, indeed the accused remains innocent, but in regard to the sanctity of public office, they become unfit
A Decision in Republic v Kenya National Commission on Humans Rights Ex-Parte Uhuru Muigai Kenyatta [2010], partly reads, “…This court has the onerous task of maintaining the delicate balance between an individual right and those of the public.
Sometimes private rights have to bow to public interest…’’

This would only serve to show that in a matter where the public interest is involved, the raw law and legal maxims notwithstanding, the court would be more than ready to apply a prudential interpretation rather than textual as suggested in Kuria’s article.

Nemo aliquam partem recte intelligere potest antequam totum perlegit is a Latin maxim that suggests that no one can understand a part, unless he has read the whole. To know the true position of the law, one would have to go beyond articles of convenience and regard the Constitution in entirety.

The Kenya Constitution,2010 outlines in clear words the chief principles that would guide its construction. Article 259, suggests among other things that the constitution must be interpreted in a manner that promotes its purposes, values and principles and contributes to good governance. Such a proposition is again found in Article 10. Clearly, a dual appearance of the same principle in the Kenyan Constitution is not a coincidence. It is an emphasis and any interpretation must objectively satisfy this criterion or else it would be a breach of the law.

One of the arch purposes of this constitution, is to establish a leadership that is not tainted. As such, it establishes several scenarios when it is unfit for a public officer to continue holding office. In Regard to the presidency, such would be found in Article 145 (1) which suggests that a president could be impeached where there are serious reasons for believing that a president has committed a crime under national or international law. The constitution equally provides mechanisms for impeachment, but shelving the procedure, the basic fact is that where there is reason to believe that a crime has been committed by a public office holder, the holder falls short of the glory of a public office.

The Purpose of this clause is to emphasize that no one is above the law, and that a “criminal or a suspected criminal is unfit to hold the presidency” note the constitution uses the phrase “serious reasons for believing that a president has committed a crime” It does refer to a conviction. Therefore a person accused for crimes against humanity, which accusation has been confirmed and forwarded to a trial chamber would be unfit to hold the presidency. Unless someone has a conscience that could dispute that to that extent, where a prosecutor of the International Criminal Court has done preliminary investigations and convinced judges that the person could have done a crime does not reach the threshold “serious” as intended by the constitution.

Can this be viewed as a contradiction of the article 50. (2) a. which assures presumption of innocence until the contrary is proven. Constitutional inconsistencies are apparent, in reality all provisions in the constitution serve the greater intention. Just as there is need to ensure sanctity in leadership, there is an equal need to protect a citizen from being ostracized by virtue of being under trial. Stretching this however, to the extent of justifying a candidacy is an ultra-liberal and unjustifiably generous construction: an attempt to use the law to serve sectarian interest I would posit.

A question that follows therefore is, if one is unfit to hold the presidency as per the constitution, can he vie for the presidency?

Clearly, there s no provision in the constitution exemplifying this issue, but it would border an absurdity that such a vacuum could endorse a situation that ultimately creates an illegality.

If an individual’s presidency would be a constitutional breach, there is no merit whatsoever to allow its possibility. Allowing that possibility is in itself a usurpation of the law. You can not create a situation that would breach a law without being in breach of the law. It would be like the country, or the vetting commission is holding the constitution in contempt!

The apparent lenience in the provisions, such as the aforementioned article 99 (3) was never intended to shield the accused from being locked out of a political race. Such is an interest that would be a non issue within legal realms. The drafters of the constitution were making a law for the country; they were never advocates of political interest. However, the drafters had to reasonably curb a possibility where legal institutions could be used to lock out competition in politics. They therefore had to assure everyone a fair chance.

If a situation arises, and it is apparent that a crime was orchestrated to lock someone out of a presidency, then the courts would liberally extent this provision to salvage the situation.

It is important to regard our history when we look at the constitution. We were writing a law that would further our vision but equally suppress the noxious nature of past regimes. Such included use of judicial institutions as a field for vendetta and to suppress dissenting voices. It was there a justified measure that legal processes in regard to political offices be broadened for openness.

Lest we forget what was intended and twist the law to favor us.

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