Professional Documents
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The notion of inherent powers is basically a principle of natural law that it remains
unchangeable. It is also a virtue of human value. Therefore, it need not be seen as a residual
power but values on justice, in the present context electoral justice. The IEBC with its mandate
can ensure that decriminalization of politics happens as it falls under the category of exigent
situation; secondly, by way of a directive, IEBC can clearly frame the relevant regulations into
the subject it has developed.
The IEBC should clearly declare that those accused of crime and corruption cannot contest as
that would deem an election not free and fair. Such persons therefore should be barred from
contesting in any election. We are concerned that the IEBC appears to give an impression that it
would be satisfied if the elections would be conducted in a peaceful manner, irrespective of the
fact that it is conducted in free and fair manner. This weak approach of the Election Commission
has really emboldened the criminals and corrupt persons to enter into electoral fray.
There is every reason for the IEBC to act firmly, considering the fact that fair elections are a part
of human rights. The concept of free and fair, genuine election/right to vote through the means
established in the constitution (free will of the electors) is also basically a human right as per
the international human rights law. Further, the concept of criminalization of politics itself
constitutes a crime. The existence of criminals in politics per se will affect the achievement of
the objectives of the constitution, where in the victims are the people. Therefore, the subject of
criminalization of politics as a matter of crime has to be examined, apart from the offences
relating to election and its extended form mentioned in the relevant statutes.
International Center for Policy and Conflict urges the judiciary to look into the objective, intent
and purpose of the Chapter Six of the Constitution in order to embolden the IEBC powers of
tackling criminality and corruption in politics. The Constitution is an organic/living document;
therefore, it should be liberally interpreted, wherein it is to address the needs of the country, tune
with the changing times and meet aspiration of the people.
As a constitutional body, IEBC is entitled to take its decision based on its conscience and
wisdom, particularly since it is the conscience keeper of the nation.
The IEBC should not be satisfied simply by sending recommendations and thinking that it has
done its duty. This is more so because in the present conditions, where public concern and anger
about corruption in national life is widespread, it should move beyond obligation and fulfil its
larger duty and responsibility.
The fact that there is a silent majority among the people building in the country to bar those
persons from contesting elections against whom corruption and criminal charges are admitted in
the court, it should spur the IEBC to act, all the more in its realization of its duties and
responsibilities towards the Constitution and people of the country.
Signed
Ndungu Wainaina
Executive Director