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24 January 2012
Nairobi — The Commission for the Implementation of the Constitution (CIC) is categorical that Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto are still eligible to vie for the presidency even after being indicted by the International Criminal Court.
CIC chairman Charles Nyachae said Parliament must first enact legislation establishing procedures and mechanisms for the effective administration of the Chapter on Leadership and Integrity in the Constitution.
He also argued that since the Independent Ethics and Anti-Corruption Commission has not been given the legal mandate by Parliament to enforce Chapter Six of the Constitution; this Act cannot be used to bar anyone facing charges at the ICC.
"Whereas the principles set out in Chapter Six are clear, the same Chapter Six in Article 80 requires legislation that would provide for the procedure and mechanism that is going to determine consequences (of breaching the law)," he said.
According to Nyachae, the Constitution in Article 79 states that only the Independent Ethics and Anti-Corruption Commission is mandated to ensure compliance and enforcement of Chapter Six on issues relating to leadership and integrity.
He said without the legislation that stipulates penalties for breaching these provisions, the EACC cannot purport to bar anyone from running for any position.
"In order to satisfactorily answer that matter one will be required to get an interpretation of the High Court on what Chapter Six says. If the court rules you have breached the Act then you will be barred from contesting. But for now it's difficult to give a solid answer," argued the CIC boss.
Justice and Constitutional Affairs Minister Mutula Kilonzo has insisted that those facing charges before the ICC cannot seek political office.
Kenyatta and Ruto have declared their presidential bids, with the former saying he would still campaign for the top seat regardless of the ICC decision.
Kenyatta and Head of Civil Service Francis Muthaura are to stand trial for alleged murder, forcible transfer of populations, rape, persecution and other inhumane acts during the 2008 post-election violence.
Ruto, and radio presenter Joshua arap Sang are suspected to be criminally responsible for murder, forcible transfer of populations and persecution.
"The only legal provisions that call for suspension of public officers charged with criminal offences are in the Anti-Corruption and Economic Crimes Act, which require a public officer to be suspended once they are charged with economic crimes," he said.
He cited Article 137(1) of the Constitution which is equivocal on the qualifications for nomination of a presidential candidate; one must be a citizen by birth, qualifies to stand for election as MP, is nominated by a political party or is an independent candidate; and is nominated by not fewer than 2,000 voters from each of a majority of the counties.
A person is not qualified for nomination as a presidential candidate if he/she owes allegiance to a foreign State or is a public officer, acting in any State or other public office.
The constitution further elaborates in Article 99(2), (3) and Article 193(2)(3) that even if a person has been convicted of any crime and imprisoned for a period of over six months but has not exhausted all possibilities of appeal or review of the sentence or decision, he/she cannot be disqualified from vying for a seat in Parliament, County government or presidency.