December 7, 2022

WHY Nominated Cabinet Secretaries with Pending Cases Deserve Due Process

Public Service, Gender and Affirmative Action Nominated Cabinet Secretary Aisha Jumwa at a past event (Photo / Courtesy)

By Prof. Morris Kiwinda Mbondenyi

Constitutional Law Expert

Email, thecoastnewspaper@gmail.com

1. The Constitution of Kenya presumes everyone to be innocent until proven guilty. Thus, no Kenyan, whether in the legislative or Executive arm of government should be denied an opportunity to serve this country simply because of a pending or ongoing court case;

2. The Constitution allows a person who has a pending or ongoing court case to contest for an elective seat, until they exhaust all channels of appeal. If this principle is applicable in the legislative arm of government, it is equally applicable across all arms of government because our Constitution embraces the principle of “equality of arms of government”. At present, we have several legislators with active court cases, some of whom will even be involved in the vetting process of the Executive nominees. Should they also be required to step aside or resign from office since they are similarly holding public office, just in the same way the Executive nominees are seeking to hold public office?

Public Service, Gender and Affirmative Action Nominated Cabinet Secretary Aisha Jumwa (RLeft) and First Lady Rachael Ruto (Right) at the opening of the 13 Parliament (Photo / Courtesy)

3. Most court cases in Kenya take long to be concluded. Denying someone a chance to be appointed simply because of a pending or ongoing court case may be detrimental to their career, especially if they are proven innocent after the lengthy trials. 

4. Disallowing people with pending court cases from taking up employment in government may open up a window for abuse in future as investigative and prosecutorial powers may be abused simply to lock out certain individuals from being appointed to office in the guise of facing trial.

5. Disallowing people who have active court cases from being appointed in government is also a violation of the Anti-Corruption and Economic Crimes Act (section 62(1)), which clearly provides for suspension of an accused person for a maximum period of 24 months. If the accused person’s case is not concluded within 24 months, they are allowed to go back to their duty stations and continue working. Meaning, there is no provision in our law which prohibits an accused person from holding office due to a pending or ongoing trial. In fact, the suspension contemplated in section 62(1) of the Anti-Corruption Act is simply for purposes of ensuring that the accused person does not interfere with evidence or intimidate witnesses in their respective workplace where the crime is presumed to have occurred. It has nothing to do with their unsuitability to hold such public offices. 

All in all, there is no law in Kenya that prohibits anyone from holding public office simply because they have an ongoing criminal case in court. After all, once a person is pronounced guilty by a court of law, they will relinquish such office.

Legislators should allow the law to take its course on those who have active court cases. They should not usurp the role of the judiciary by pronouncing such people guilty even before their trials are concluded by the judiciary. 

Our Constitution clearly embraces the doctrine of separation of Powers and MPs cannot therefore purport to pronounce the guilt of nominees whose cases are still ongoing in court.

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