The Independent Electoral and Boundaries Commission (IEBC) Chairperson Wafula Chebukati says two articles in the Constitution stop the agency from barring “corrupt” or “crime-linked” aspirants from vying for elective seats.
In a media sustainability convention organised by the Kenya Media Sector Working Group on Saturday, July 3, Chebukati said Articles 99 (3) and 193 (3) of the Constitution bar the electoral board from striking out aspirants’ names from the ballot until corruption or criminal cases they’re facing are resolved at the highest possible court.
Article 99 speaks on qualifications and disqualifications for election as a Member of Parliament (MP), while Article 193 (3) stipulates the requirements for qualification or disqualification as a Member of County Assembly (MCA).
Any Kenyan seeking to run for the above positions faces automatic disqualification in case of the following: he/she is bankrupt, is imprisoned for at least six months, has abused a State office, is of unsound mind, has not been a citizen of Kenya for at least 10 years immediately preceding the date of election, among others.
However, sections three of both articles of the Constitution – 99 and 193 – prohibit the IEBC from blocking aspirants linked to graft or other crimes until the accused persons exhaust all their available appeal routes.
“A person is not disqualified under unless all possibility of appeal or review of the relevant sentence or decision has been exhausted,” says the law.
The Ethics and Anti-Corruption Commission CEO, Twalib Mbarak, who was also present at the Media Sector Working Group function held at the Leopard Beach Resort in Diani, Kwale County, revealed that 106 aspirants out of 16,182 were red-flagged for violating Chapter Six of the Constitution in 2017 polls. The IEBC, however, cleared them.
The electoral agency’s boss, Chebukati, confirmed receiving the flagged names.
“Out of the 106 aspirants, two were barred from vying; they had convictions exceeding six months. The rest are cases ranging from investigations to court cases. That legal problem [of not barring someone from running for an elective seat until they exhaust their appeal options] came up. As a Commission, we wouldn’t want to block someone from seeking election, then the next day, he or she takes us to court,” said Chebukati.
“There’s a need for legal reforms and clarity on Articles 99 (3) and 193 (3) of the Constitution. As IEBC, we wouldn’t want to be sued every other time,” added the electoral board’s boss.
The Director of Public Prosecutions (DPP), Noordin Haji, who was also present at the event, asked Kenyans to understand the challenging environment the IEBC and the EAAC are operating in before blaming the two agencies for not cracking the whip on crime-linked politicians.
“Our shortcoming is in the legislation,” he said, citing cases of hate speech as some of the most difficult ones to successfully prosecute.
“If we don’t come up with laws that severely punish hate speech, then Kenya could suffer another post-election violence in 2022, similar to that of 2007,” said Haji.
Anti-graft agency boss, Twalib Mbarak, said the lack of strict laws to curb crime-linked politicians from seeking elective seats could cost Kenya dearly in the long run.
“Through our intelligence as EACC, we know quite a number of suspected crooks in the counties, who are planning to run for MCA seats. And, because of the legal gaps that we’ve mentioned, don’t be shocked that in the next government, most MCAs would be people of questionable character,” said
Wafula Chebukati said at the function that the IEBC will conduct two mass voter registration exercises ahead of the August 2022 General Election; the drive targets four million Kenyans.
Since 2018, the Commission has managed to register only 147,000 Kenyans, with Chebukati citing funding constraints.
In the run-up to the August 2017 General Election, Kenya had 19.6 million registered voters.
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