A special three-judge bench appointed by Chief Justice Martha Koome to determine whether aspirants with integrity issues can vie for elective positions has withdrawn orders that restrained the electoral commission from allowing former Nairobi Governor Mike Sonko to vie for the Mombasa gubernatorial seat.
Judges David Majanja, Enock Chacha Mwita and Mugure Thande also consolidated nine petitions regarding the matter.
However, Justice Majanja was quick to add: “The discharge of the orders must not be construed to mean that IEBC (Independent Electoral and Boundaries Commission) should accept nomination papers from the aggrieved candidates.”
The orders that the judges discharged had been granted by Justice John Mativo (Mombasa) and Justice Anthony Mrima in Nairobi.
Justice Mrima had barred the IEBC from clearing Mr Sonko to vie for the Mombasa gubernatorial seat on a Wiper Democratic Party ticket.
Four of the cases are seeking to bar Mr Sonko from vying for the Mombasa governorship and one is against UDA’s Kiambu senatorial aspirant Karungo Thang’wa.
The consolidated petitions will be heard on Thursday, June 9, 2022.
Asking the judges to discharge the interim orders, lawyers Wilfred Nyamu (for Sonko) and Ng’ang’a Mbugua (Thang’wa) said “no prejudice will be suffered by IEBC if the candidates are allowed to present their documents”.
The judges were told that Mr Sonko and Mr Thang’wa were not heard before the court gave the orders that they be locked out of the August 9 elections.
While barring Mr Sonko from vying for the Mombasa gubernatorial seat, the court noted he had been impeached by the Senate over corruption and gross misconduct when he was governor of Nairobi.
In the petitions filed by rights’ organisations, the common thread in all is Chapter 6 of the Constitution on integrity.
A battery of more than 30 lawyers led by Dr John Khaminwa, Mr Nyamu, Mr Assa Nyakundi, Mr Jared Magollo and Mr Titus Kirui for Mr Sonko asked the judges to allocate them time to go through the contentious issue as to whether an individual facing an integrity issue can be cleared to vie for any leadership position pending determination of the corruption suits.
“I urge this court to allocate us ample time to thrash out this issue on integrity as stipulated under Chapter 6 of the Constitution so that this court can give a lasting solution whether suspects facing graft cases can vie for elective positions or not, given that the law presumes one innocent until proven otherwise by a court of competent jurisdiction,” lawyer Njiru Ndegwa told the three judges.
Giving directions, the judges ordered parties to file written submissions not exceeding 15 pages by June 7.
The judges have also been tasked with determining whether persons impeached from a public office can vie for any other elective position and whether persons with questionable integrity should be allowed to contest.
The consolidated petitions had been filed separately in different courts. The petitioners include civil society groups and individuals such as rights activist Okiya Omtatah, Inuka Kenya na Sisi organisation, lawyer Edward Asitiba and Mukidi Jwenge.
Others are Kelvin Njui, Silvester Kipkemoi, Ndoro Kayuga and Kituo cha Sheria.
The petitioners believe that both Mr Sonko and Mr Thang’wa are unsuitable to contest or hold public office, having been impeached, and the same impeachment having been not been overturned by court.
The basis of their case is Article 75(3) of the Constitution, which bars a person removed from office from ever holding any other state office.
Mr Sonko was impeached on December 17, 2020. The Senate, while passing the resolution to remove him from office, found him guilty of plundering public resources, persistently intimidating and molesting officers of the County Executive Committee and unlawfully using public fund to pay for his daughter to travel to New York, USA.
He was also found guilty of persistently and willfully using, publicising and publishing abusive and unbecoming words and language as evidenced by his social media posts. Further, that he made numerous rants in which he hailed abuses and conducted himself in a manner that undermines and demeans the office of the governor.
Mr Thang’wa, for his part, was impeached by the Kiambu County Assembly in October 29, 2019, for gross misconduct, incompetence and abuse of office during the tenure of former governor Ferdinand Waititu. He was the county government’s minister for Youth Affairs and Sports.
The other three cases involve the general interpretation of Chapter Six of the Constitution on leadership and integrity.
Mr Asitiba wants court to declare that candidates with unresolved court cases involving economic crimes, abuse of office and capital offences should not contest for public offices until they have been cleared of such charges.
“The presumption of innocence notwithstanding, the petitioner argues that allowing such aspirants to run for office is to risk having corrupt officials with tainted records hold public/state offices and the inevitable consequence is increased looting,” he says in the court papers.
The petition comes a month after the IEBC said it could not bar persons with integrity issues from contesting for elective seats as it blamed courts for hindering its mandate to enforce ethics and the code of conduct in elections.
The commission also holds that the reports submitted to it by the anti-corruption watchdog on integrity of each election candidate are not conclusive in determining the suitability of a candidate to vie unless backed by an order from a court or a quasi-judicial body.
But the lawyer says that continued failure by the IEBC to enforce constitutional provisions on leadership and integrity has kept unfit persons in state offices, to the detriment of Kenyans.
This, he says, has eroded public confidence and trust in the electoral process and the statutory bodies mandated to protect the interest of citizens.