Like you, I’ve often heard about the term presumption of innocence. I never knew how serious it was until I saw the Independent Electoral and Boundaries Commission (IEBC) clearing various candidates with outstanding integrity issues to vie.
People like Sirisia MP John Walukhe who had been found guilty by a court of law of corruption charges running into more than Ksh 700 million were allowed to vie for political office. Only for his appeal to be rejected later on and was sentenced to 67 years in jail.
He is not the only one, we have a Deputy President who was ordered by the courts to forfeit Ksh 200 million to the state when it was ruled that they were proceeds of corruption. But now our President took it to a whole new level when he revealed his cabinet appointments.
President William Ruto, appointed various people with pending cases in court. For example, you know Dr. Kamau Thugge, the former powerful Treasury Principal Secretary. He used to serve under Henry Rotich. However when the Arror and Kimwarer dams scandal surfaced, Thugge and his former boss were mentioned adversely. The case is still pending in court.
Hon. Aisha Jumwa has a murder case going on but she was nominated to the cabinet by the President. I don’t want to apportion all the blame on the President because frankly this is a Kenyan problem. We all are guilty because our standard is low.
The excuse that we use is the famous “You’re innocent until proven guilty”. My issue with this statement and premise is that it’s working against us as a country. Often such high profile cases take years to be fully expedited. The Walukhe case took more than five years. Therefore, unscrupulous individuals who have identified weaknesses in our laws are using this statement to their advantage at the expense of excellence and integrity.
Reminds me of a time when the current Africa Development Bank (AfDB) President Akinwumi Adesina was facing corruption charges. The American government had accused the Nigerian of being caught up in corrupt dealings.
When the accusations kept growing, he stepped aside for investigations to take place. Investigations were done and the man was cleared of all corruption charges. He was then reinstated to his position and continues to play the role of AfDB President to date.
Senator and advocate Okongo Omogeni on a morning breakfast show raised alarm about the President’s appointments. He demonstrated the kind of precedent that we’re setting for the generations to come. Omogeni decried that the standard with which we hold public officers is slowly deteriorating. He said that this problem will come to haunt us in the future if we don’t stem it as early as now.
“Section 68 of the Public Officer Ethics Act declares that all public officers must be cleared of all wrongdoing before serving the public,” disputed Omogeni.
Kanjama’s opinion
I had a conversation with seasoned lawyer and former LSK Chairman Nairobi Branch Mr. Charles Kanjama SC to decipher what the law says about such occurrences. Mr. Kanjama crushed my feelings when he said that every accused person has rights which have to be respected. A person has a right to a fair hearing and go through due process. This particular individual can only be deemed unfit for office or having lacked integrity only if the court convicts them of corruption and other vices.
Until then, the person is innocent. They can serve the public and hold an office. Additionally, they can also dispense their duties accordingly until the conclusion of the matter. Mr. Kanjama says that one of the reasons the constitution has aligned it that way is because anyone can maliciously go to court and accuse someone of wrongdoing. Therefore, the constitution has set a standard whereby an accused person has to go through the process of trial, hearing, determination and judgment.
If a state officer or an elected official is charged in court for breaking the law or violating the constitution, should they step aside for investigations and finalization of the case in court? The constitutional lawyer says that it’s according to the person’s discretion. They can choose to step aside but can’t be forced to do so. According to Kanjama, Chapter 6 and 13 of the constitution protects the rights of a public officer to go through due process in court.
“The standard applied here is a voluntary standard. You cannot remove someone forcibly from their office without due process. This is because you’ll be taking away their rights. It’s called a discretionary standard because the individual can choose to step aside even if they have been appointed,” said Kanjama.
The appointing authority
An appointing authority also has the power to dismiss and appoint who they see fit for the job. Kanjama is of the opinion that the appointing authority should uphold a standard of integrity even as they choose different people for public service jobs.
In this case, the President should establish a standard for his cabinet in which he decides to leave out people who have pending integrity issues in court. He can also demand or fire a cabinet secretary who has been charged in court. As a matter of discretion but not following a particular law.
Therefore, the buck stops with His Excellency President William Ruto. With time we’ll get to see the standards he upholds in his administration in the coming years. The jury might be out because of his appointments but ultimately, he wields the power and the authority courtesy of being our Head of State.
You can only hope for the best or register your displeasure on social media but that’s as far as you can go. We made our bed, now we’re lying on it.
