By Ndung’u Wainaina
This is open letter to the Chairman of Independent Electoral and Boundaries Commission, Mr. Issack Ahmed Hassan
Mr. Issack Hassan was adversely linked to the â€˜chicken eatingâ€™ scandalously corruption scam. He is also implicated in Auditor Generalâ€™s Special audit report on the biometric voters kits( June 2014).
The audit report brings out an institution in state of decay and chaos. This is indictment of the leadership competence of the chairman.
Mr. Chairman, this is not personal. It is time you stepped down from public office. It is not your choice. Your self-defense arguments are irreconcilably hollow and stench. Chapter Six of the Constitution remains complete as it is. You bring dishonour and disrepute to the institution of the IEBC.
It is the responsibility of heads of departments, offices and agencies to establish measures and standards that will ensure transparency of and openness in public transactions in their respective offices
Your intransigent insistence to remain holding public office is disdain to the people of Kenya and their constitution.
Accountability of public officials is deeply ingrained within the Constitutional framework of the country. The new dispensation political and civic culture of the country is based on the values and principles that public officials should always perform their duties in the public interest , uphold high standards of integrity and ensure their conduct bring honour and dignity to the public office they hold.
Though criminal jurisprudence presumes a man innocent till proven otherwise, you vacating public office does not fall foul of this proposition. It has no bearing on whether indeed you are guilty of the alleged offence or not. On the contrary, it represents a distinct legal determination of type of persons who is suitable for holding public office with integrity and credibility.
The principle of ‘until proven guilty’ apply in administration of criminal justice not on matters of ethics and integrity. The Constitution ushered a high threshold of integrity to hold state office, which needs not meet criminality culpability or attribute.
Determination of suitability for holding public office has no bearing on your guilt or innocence, which can only be judged at the criminal trial. To conflate the two is jurisprudentially flawed and make a category mistake. Popularity of a person does not override the constitutional requirements of probity, integrity and adherence to national values and principles when it comes to holding a public office.
It is not about the individual desire to serve in position of public authority but the objective assessment of their ability to do so having regard to the situation they find themselves in.
Where there are many unresolved issues on a personâ€™s suitability to hold public office, some of which can only be resolved upon proper inquiry or conclusion of a pending judicial process, it cannot simply be argued that such persons are nonetheless eligible for elections. To take a contrary position is to defeat the object of the constitution on integrity in public office.
Integrity and credibility is the life-blood of institutions in a true constitutional democracy. Accordingly, a person who is under a cloud should not be allowed to function as it damages the faith of the people in the institutions.
The presence of tainted people is the main reason for deterioration in the credibility enjoyed by the institutions.
Mr. Hassan and fellow Chicken eating scandal folks cannot insist in staying put in public office.
First, the constitution of Kenya 2010 provides a minimum threshold on suitability to hold public office based on personal integrity, competence and suitability. You are barred to desecrate public office with integrity deficit.
Secondly, the 2010 constitution ushered in a completely new way of governance. The tribunal investigating Nancy acknowledged this: quoting Justice JB Ojwang, now of the Supreme Court of Kenya: â€œâ€¦the Constitution of Kenya 2010 is a unique governance charter, quite a departure from the twoâ€¦.earlier constitutions of the post-independence period the new Constitution lays a foundation for values and principles that must imbue public decision-making
Third, the conduct of state officers in private and public is very central in determining whether they have the required integrity and suitability to hold office.
Finally and most critical why Mr. Chairman you must leave public office like yesterday, the questions of the integrity or suitability of state officers do not need to be ascertained through court cases proving the guilt or innocence of the concerned party.
The Judicial Nancy Baraza Tribunal( reaffirmed by Court in Mumo and Waititu cases respectively) stated, â€œIt is evident that the determination of the allegation is no longer solely a legal process of sifting through the evidence and finding whether the facts proved support the charge.
Now, apart from looking at whether a judge has breached his ethical responsibilities, one has to determine whetherâ€¦[there has been committed] an infraction of other provisions of the Constitution of Kenya relative to the Bill of Rights, national values and principles, as well as those of leadership and integrity.â€
It is time you resigned from IEBC. The Country’s interests supercede yours. Kenyans need to embark on serious process of restoring trust and legitimacy of IEBC