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THE CONSTITUTION TAKES AWAY ANY RIGHT TO CHOOSE UHURU, RUTO

Published in The Star Newspaper, Friday, January 4, 2013  *Waikwa Wanyoike


IT’S THE ECONOMY, STUPID! This was a campaign phrase coined by James Carville, one of Bill Clinton’s campaign strategists during the 1992 presidential election. The phrase would later define the tempo and perhaps the outcome of the campaign. The message from the phrase was that there was one key reason that justified voting out of office President George Bush – that is the lagging state of the American economy.
In the last few months, Kenyans have engaged in the debate whether Uhuru Kenyatta and William Ruto should run for office.  Many arguments have been developed on why they should run – from sovereignty to the need to give the voters the power and right to choose. Regardless of how brilliant and persuasive some of the arguments may sound, there is one conclusive and determinative reason why Uhuru and Ruto do not qualify to run for or become state officers: It’s the Constitution.

When Kenyans voted on August 4, 2010 for a new Constitution, they agreed to bind themselves to certain set of rules on how they would govern their affairs. The Constitution prescribed many non-negotiable tenets. These include what disqualifies one from becoming a state officer.

Consider the following for example. Article 137 of the Constitution provides the qualifications for person to stand as president and states in part that a person qualifies for nomination as a presidential candidate if the person—(a) is a citizen by birth. This means that even a person who has acquired Kenyan citizenship by registration cannot qualify to be president. In fact, the Constitution goes further and bars even persons who are citizens by birth but who hold a second citizenship – that is they are dual citizens - from becoming president. Would one argue that a non-citizen can stand for election as president? Or better still, shouldn’t voters be able to exercise their “power and right to choose”, through an election, whether a non-citizen should become president? Would it not create the greatest uproar, if the Independent Electoral and Boundaries Commission (IEBC) was to accept a non- Kenyan as a candidate to contest for the Kenyan presidency? Why? It’s the Constitution.

Consider another. The same Article 137 further provides that for one to be a presidential candidate he or she must be “qualified to stand for election as a Member of Parliament.” Among the qualifications needed for one to be an MP in Article 99 is that one has to be “a registered voter.” This, by extension means that a presidential candidate must be a registered voter in order to be allowed to contest the presidency. What would happen if the IEBC accepted a non-registered person to run for president? Would this not significantly undermine the stature of the IEBC, not to state that Kenyans would break their limbs rushing to Court to nullify such action? But why not in such a case allow Kenyans exercise their freedom to choose through the ballot on whether a non-registered citizen should become president? It’s the Constitution.

One more. The same Constitution says one is disqualified to contest the presidency or any elective state office if he or she is an “undischarged bankrupt.” Bankruptcy can be caused by many reasons, including poor financial management, fraud and other financial malpractices. But it can also be caused by purely innocent acts, for example where a natural disaster strikes causing a person to significantly loose capital and assets without any means of servicing debts. Regardless, the Constitution bars an undischarged bankrupt from contesting the presidency whether the cause for the bankruptcy was through malpractice or by acts beyond one’s control. Why not argue with this provision? Why not enlist all the bankrupts who wish to run for presidency or any elective state office and leave it to the voters to choose? It’s the Constitution.

Now, even more practical. When our former Deputy Chief Justice was accused of pinching a security officer’s nose, she had to lose her high flying job because the action complained against demeaned the dignity of the office of the Deputy Chief Justice. This was despite of her concerted effort to stay on. Why, despite of her endless assertion of innocence did the Tribunal still send her home? It’s the Constitution.
Then why do we want to argue with the same Constitution when it restricts, at Article 99(2)(h), persons from running for State Office if they have violated leadership and integrity standards set out in Chapter Six. For example, Chapter Six is unequivocal that “authority assigned to a state officer is to be exercised in a manner that “(iii) brings honour to the nation and dignity to the office; and (iv) promotes public confidence in the integrity of the office.” How would a person enduring a protracted international public trial for crimes against humanity or even possibly a fugitive from justice (if it came to that) “bring honour to the nation?” What dignity can attach to an office when the holder is being prosecuted for murder, rape and forcible transfer of a population? What value does misinformed arguments on sovereignty or the rights to choose in such a situation add in protecting and promoting the values of the Constitution? After all, which right to choose, when the Constitution has already decreed that, from the start, we do not even have the right to choose persons who do not meet certain criteria, including integrity standards set out in Chapter Six?

In the end, why is it that we do not have the right to choose Uhuru for president and Ruto as his deputy? IT’S THE CONSTITUTION, STUPID!