CBG Ouma - Chapter Six

LAW SOCIETY OF KENYA
CPD SEMINAR ON PUBLIC LAW
GREEN HILLS HOTEL, NYERI
15TH & 16TH SEPTEMBER 2016
RESTORING THE SUBSTANTIVE BITE OF CHAPTER 6 IN THE
ELECTORAL PROCESS IN 2017
BY CHARLES B G OUMA . LLB MLB
ADVOCATE OF THE HIGH COURT OF KENYA
Presentation outline
1.
2.
3.
4.
5.
6.
Introduction: Leadership and Integrity reloaded.
Constitutional statutory and institutional framework
Review of jurisprudence
Emerging issues
Our verdict on chapter six
Finally
1
Introduction
If you could afford it, and he needed the
job, would you hire Bill Cosby as your
house help?
• American entertainer Bill Cosby has been the
subject of publicized sexual assault
allegations. With the earliest alleged incidents
taking place in the mid-1960s, Cosby has been
accused by over 60 women of either rape,
drug facilitated sexual assault, sexual battery,
child sexual abuse, and/or sexual misconduct.
Earlier sexual assault allegations against
Cosby became more public after an October
2014 comedy routine by comedian Hannibal
Buress alluding to Cosby's covert sexual
misbehavior went viral, and many additional
claims were made after that date. The dates
of the alleged incidents span from 1965 to
2008 across 10 U.S. states and one Canadian
province
A lawyer named 'Strange'
• A lawyer named 'Strange' was shopping for a tombstone. After
he had made his selection, the stonecutter asked him what
inscription he would like on it. "Here lies an honest man and a
lawyer," responded the lawyer. "Sorry, but I can't do that,"
replied the stonecutter. "In this state, it's against the law to
bury two people in the same grave.
• However, I could put 'Here lies an honest lawyer'." "But that
won't let people know who it is," protested the lawyer. "It most
certainly will," retorted the stonecutter. "People will read it
and exclaim, "That's Strange!"
What does chapter six expect of our leaders?
• Mumo Matemu
• Integrity is therefore not only about
an individual’s own perception about
the correctness or appropriateness of
their conduct, but also has a
fundamental social and public quality
to it. It is our view that as the society
also expects certain values to be
upheld, the integrity provisions of the
Constitution demand that those
aspiring to State office be like Caesar’s
wife: they must be beyond reproach
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• Synonyms:
• The action of leading a • Directorship,
governance,
group of people or an administration,
captaincy,
control, ascendancy, supremacy,
organization.
rule,
command,
power,
dominion, influence
• What leaders do
• Leaders set direction………create
an inspiring vision, and then
motivate and inspire others to
reach that vision
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• Definition
• The quality of being honest and
having strong moral principles; moral
uprightness.
• Synonyms
• Honesty, probity, rectitude, honor,
good character, principle(s), ethics,
morals, righteousness, morality, virtue,
decency, fairness, scrupulousness,
sincerity, truthfulness, trustworthiness
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What do these leaders have in common?
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The leaders we chose
The constitutional threshold
1. Serious
unresolved
questions
2. No
requirement
of
criminality.
3. Conviction of a criminal
offence is not dispositive
Chapter Six at a Glance
•
•
•
•
73 Responsibilities of leadership
74Oath of office of State officers
75. Conduct of State officers
76 Financial probity of State
officers
• 77 Restriction on activities of
State officers
• 78.Citizenship and leadership
• 79 Legislation to establish the
ethics and anti-corruption
commission
• 80 Legislation on leadership
IN THE HIGH COURT OF KENYA AT
NAIROBI PETITION NO. 229 OF 2012
• The people of Kenya did not intend that these provisions on integrity
and suitability for public offices be merely suggestions, superfluous
or ornamental; they did not intend to include these provisions as
lofty aspirations. Kenyans intended that the provisions on integrity
and suitability for office for public and State offices should have
substantive bite. In short, the people of Kenya intended that the
provisions on integrity of our leaders and public officers will be
enforced and implemented. They desired these collective
commitments to ensure good governance in the Republic will be put
into practice.
2
Constitutional, statutory and institutional
framework
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Constitutional & Statutory framework
Constitution
1. Article 38, 73 74 75 76 79 80 165 CoK 2010
Acts of parliament
1. Ss3 4 5 13 42 46(1)(c) 52 Leadership and Integrity
Act 2012
2. Ss11 12 Ethics and Anti-Corruption Commission Act
3. Political Parties Act 2012 S40
4. Ss88 (4) (e) 74 (14(e)Elections Act
5. Commission on Administrative Justice Act 2011
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Institutional framework
Judiciary
Parliament EACC
Political Professional
• High Court The
IEBC
Parties bodies
• Election
Executive Other
Civil Society
Courts
constitutional
• Supreme
Commissions
Court
• PPT
• IEBC DRC
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People/
Electorate
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3
A review of jurisprudence
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A review of jurisprudence
1. Trusted Society of Human Rights Alliance vs AG & 3 others Petition
No. 229 OF 2012 Ngugi, Ngugi & Odunga JJ 20th September 2012
2. Commission for the Implementation of the Constitution v
Parliament of Kenya & 5 others [2013] eKLR Majanja J 7th day of
February 2013
3. International Centre for Policy and Conflict & 5 Others vs The Hon.
Attorney-General & 4 Others[2013]eKLR HC Petition 552 of 2012
Decided 15th day of February 2013 Mbogholi Kimondo, Omondi
Kimaru, Nyamweya JJ
4. Evans Nyambega Akuma v Attorney General & 2 others & 2 others
[2013] eKLR 20th Day of September, 2013
A review of jurisprudence
5. Isaac Aluoch Polo Aluochier v Attorney General & 2 others [2013] eKLR Odunga
J 1st day of March 2013
6. Benson Riitho Mureithi v J. W. Wakhungu & 2 others [2014]eKLR Mumbi Ngugi
J 28th day of February 2014
7. Secretary Isiolo County Assembly & 2 others v Speaker (Mohammed Tubi) Isiolo
County Assembly [2014] eKLR Lenoala J 30th Day of September 2014.
8. Francis Mwangi v Ethics and Anti-Corruption Commission [EACC] & 3 others
[2016] eKLR Mumbi Ngugi J 27th day of January 2016
9. Okiya Omtatah Okoiti & another v Attorney General & 3 others [2016] eKLR 2nd
June, 2016
Verdict on court decisions
4
Emerging issues
The constitutional threshold-The
Unanswered /unresolved questions
Mumo
Matemu
UhuRuto
eligibility case
The constitutional threshold-The
Unanswered /unresolved questions
• Criminal convictions
• Convictions pending appeal
• Professional sanctions
• Elective vs appointive positions
• Duration of ineligibility
• Rehabilitation
• State officers vs prospective
state officers
• Parallel proceedings
• The political question doctrine
• Issues upon reappointment
• Persons in office
• Locus standii
• Role of EACC challenged
• Standard of review( procedural
and substantive inquiry)
• My life my choice
Who has Jurisdiction?
1. High Court?
2. Election Court?
3. Supreme Court?
4. EACC?
5. IEBC?
6. PPT?
7. Political Parties?
8. Professional bodies?
9. Parliament?
10.The Executive?
Who has Jurisdiction?
• Speaker of National Assembly v Njenga Karume [2008] 1 KLR
425,
• Luka Angaiya Lubwayo & another v Gerald Otieno Kajwang &
another [2013] eKLR
• International Centre for Policy and Conflict & 4 Others v The
Hon. Uhuru Kenyatta and Others, Petition No. 552 of 2012
No invoking article 165 where parliament has
created special procedures
Special procedures have been created under the LIA
Stepping Aside
How effective are vetting processes ?
• JSC
• Parliament
• VJMB
• IEBC
• NPSC
Where is the church ?/Where is civil society?
5
Our Verdict
CIC versus National Assembly, the
Senate and the A-G, Petition 496 of 2013
• CIC Challenged the constitutionality of the LIA
Diluted
Inconsistent with representations of stakeholders
Procedures not provided
Overlapping and inconsistent mandates
A General Perception on the LIA
• A review of the leadership and integrity law makes it clear
that the hurried manner of enacting the Leadership and
Integrity Act in 2012 compromised quality and detracted
from careful consideration of its central provisions. The
result was a law with many infirmities: poor design logic
especially not evidently drawn from best practice;
unconstitutional provisions, internal inconsistencies, formal
failures such as mis-numbering of sections and just plain
conceptual incoherencies and poor design
Is Chapter Six still with us?
6
Finally
Our individual positions
• What drives our individual ,
and, sometimes, collective
position on chapter six?
Cowardice?
Expediency?
Vanity?
Conscience?
From Martin Luther King
Cowardice
asks the
question,
is it safe?
Expedienc
y ask the
question,
is it
politic?
Vanity
asks the
question,
is it
popular?
But,
conscienc
e ask the
question,
is it right?
• And there comes a time
when we must take a
position that is neither
safe, nor politic, nor
popular, but one must
take it because it is
right.”
• For Chapter 6, that time
is now!
Acknowledgements
• The illustrations used in this presentations are not my original work.
They are downloaded from the internet. The cartoons are largely by
Gado
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THANK YOU FOR YOUR PARTICIPATION
From Your Presenter
Charles B G Ouma
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