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 9/13/2016 KSL CPD 2016 CHARLES B G OUMA 6 • 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 9/13/2016 KSL CPD 2016 CHARLES B G OUMA 7 • 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 9/13/2016 KSL CPD 2016 CHARLES B G OUMA 8 What do these leaders have in common? 9/13/2016 KSL CPD 2016 CHARLES B G OUMA 9 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 9/13/2016 KSL CPD 2016 CHARLES B G OUMA 14 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 9/13/2016 KSL CPD 2016 CHARLES B G OUMA 15 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 9/13/2016 KSL CPD 2016 CHARLES B G OUMA The People/ Electorate 16 3 A review of jurisprudence 9/13/2016 KSL CPD 2016 CHARLES B G OUMA 17 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 9/13/2016 KSL CPD 2016 CHARLES B G OUMA 37 THANK YOU FOR YOUR PARTICIPATION From Your Presenter Charles B G Ouma 9/13/2016 KSL CPD 2016 CHARLES B G OUMA 38
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