Why Waititu Sonko, Waluke may be on ballot
Despite having been slapped with a 67-year jail term over theft of Sh297 million through dubious tenders, Sirisia MP John Waluke is among dozens of politicians who may still be on the ballot courtesy of a loophole in the law.
Former Kiambu Governor Ferdinand Waititu and his former Nairobi counterpart Mike Sonko, could also make a surprise comeback to the political scene thanks to the law that guarantees full protection of suspects until proven guilty in court.
Governors, MPs and other politicians with pending criminal charges relating to shameless looting of public coffers, fraud and murder, who are keen to defend their positions or seek mandates in 2022, could also get clearance from the Independent and Electoral and Boundaries Commission (IEBC) despite growing demands that they should be locked out on integrity grounds.
Besides Waititu and Sonko, who were impeached and have pending corruption cases, former Wajir Governor Mohammed Abdi who was impeached recently could still get a lifeline in 2022 as the current law does not stop an impeached county chief from vying for an elective position in a subsequent poll.
Speaking to People Daily, Ethics and Anti-Corruption Commission boss Twalib Mbarak expressed his frustrations, saying it’s impossible for the graft body to lock out suspected graft lords from seeking elective posts unless their cases have been determined.
Twalib said though EACC has a mandate on vetting to guide IEBC in clearing all candidates, it has no locus standi to bar them.
He says while Article 99 of the Constitution disqualifies anyone imprisoned for at least six months or found guilty for misusing or abusing public office or contravened Chapter Six of the Constitution, it also says such action cannot be taken “until all possible avenues of appeal or review of the relevant sentence or decision have been fully exhausted”.
“As EACC, we can only raise the red flag by pointing out that a certain candidate has certain issues but at the end of the day, it is the IEBC that will do the clearance.
But then again, the Constitution says for someone to be barred, all legal aspects must be exhausted first.
This means someone could be sentenced over a crime or be impeached, but with an appeal pending, they cannot be barred from contesting until the appeal is exhausted,” Twalib said.
This appears to contradict an earlier position taken by both EACC and IEBC when they barred Waititu from contesting in a by-election that had been anticipated in Nairobi after Sonko’s ouster.
The by-election was later postponed after Jubilee manoeuvred around to nominate Anne Kananu as deputy governor, before she was positioned as the governor in an acting capacity.
On the one hand, nothing would stop Governors Muthomi Njuki of Tharaka Nithi and Ali Korane (Garissa) and a host of MPs and MCAs facing graft charges from seeking re-election as long as their cases remain pending in court.
Governors Moses Lenolkulal (Samburu), Okoth Obado (Migori) and Sospeter Ojamong (Busia), whose two terms come to an end in 2022, can still opt to vie for either Senatorial or National Assembly seats.
Also in this category is former Nairobi Governor Evans Kidero, who is facing multiple graft and abuse of office charges, and has declared interest in the Homa Bay gubernatorial seat.
At least 25 MPs currently facing charges of stealing Constituency Development Fund (CDF) money, fraud, forgery of academic documents and incitement to violence, which have put their characters in collision with Chapter Six, could still have their names on the ballot in 2022.
Several former top State officers, such as former National Treasury Cabinet Secretary Henry Rotich, who were kicked out of office after being charged with theft, are said to have launched their campaigns.
Lawyer Danstan Omari blames the loophole on alleged mutilation of Chapter Six of the Constitution in 2012, when a five-bench judge sanctioned the candidature of President Uhuru Kenyatta and his deputy William Ruto despite the two facing charges at the International Criminal Court (ICC).
The bench ruled that all appeal opportunities must be exploited before a candidate can be barred from contesting.
“Chapter Six of the Constitution said that if anyone has a pending criminal case, they should not be cleared.
But when Uhuru and Ruto were cleared to contest despite having charges at ICC, a petition was filed and a ruling made that suspects can be cleared to vie, unless all appeal avenues are exhausted. That decision has never been challenged,” he told People Daily.
“Therefore, anyone with a criminal or graft case, or has been jailed, cannot be barred until an appeal, which must go through the High Court, Court of Appeal and Supreme Court is exhausted.
What IEBC has been talking about (regarding barring suspects and convicts) is a moral question. This country is governed by the rule of law, not the rule of morals.”
Waluke has appealed against his sentences and is out on bond, while Waititu, Sonko and Mohammed have lodged appeals against their impeachments.
Constitutional lawyer Gad Awuonda says impeached governors, who have appealed and other leaders facing graft charges, still have an open window to contest.
“Any impeached governor whose appeal to the removal is pending before the court has a lifeline. But should the last appeal be thrown out, then he or she cannot vie for any elective position based on Chapter Six,” Awuonda said.
But the EACC says, despite the legal hand that makes it impossible for people with questionable character to be barred from contesting, voters have a responsibility of interrogating characters of candidates, and pick those that meet the Chapter Six cut.
Appealing to emotions
He says EACC will publicly expose any dark past of all aspirants to help the electorate make the right decision.
“Though we shall vet all the aspirants, the ultimate responsibility to determine who to elect lies with voters. But this time around, we shall make public the findings of our scrutiny to help the electorate make an informed choice,” he said.
Pundits now opine that lack of evaluation of competence and integrity of candidates who seem to have an affinity for flamboyance, populism and handouts has flooded the political landscape with miscreants.
“Our expectations from leaders are never put into account. People simply say “walete yetu sisi tukule watakula yao tukiwachagua (let them give us our share, for they will make theirs once voted in)”, says Alex Awiti, a policy expert.
Lawyer Ekuru Aukot argued that dishonesty and lack of societal values among Kenyans and scandalous elections are to blame for election of people with questionable integrity.
Political analyst Peter Ngethe says Kenyans seem to have succumbed to emotional manipulation by politicians.
“Politicians have mastered the art of appealing to emotions, which are very central to the voters’ hearts,” Ng’ethe said.