Lessons From The Nancy Baraza Case

There should not have been much surprise when the Kenyan Cabinet released its emaciated draft of the Leadership and Integrity Bill 2012. Kenya’s political elite has been most unhappy by attempts to vet those who are vying for elective positions: there are really too many skeletons in the cupboard really. As the Constitution Implementation Commission noted, “One of the fast-dawning realities is that the new constitution has established mechanisms that will, if fully brought to effect, sweep out a lot of state officers on the grounds of unsuitability to hold office. A key component here is that of personal integrity of state officers.”

The CIC diagnosed the cabinet bill as suffering from several deficiencies: the Bill is not a reflection of various proposals and memorandums received from the public on what should be contained in a leadership and integrity law; the Bill fails to establish transparent procedures and mechanisms for the effective administration of Chapter Six and more specifically, fails to establish a vetting process for persons seeking election to public office whilst also ensuring that they conform to the requirements of Chapter Six and the ethical and moral requirements necessary under Article 99 and 193.

This is a key expectation of the Bill whose objective is to provide a minimum threshold of election based on personal integrity, competence and suitability. [It] fails, as a fundamental requirement, to allow for public input and participation into the vetting process for persons seeking election or appointment to State office; [it] fails to provide for a way(s) for the comprehensive administering of Chapter Six; and fails to provide for processes of review and appeal for persons dissatisfied with decisions of the institutions vetting the persons with respect to Chapter Six.

The Bill waters down key provisions of the Constitution and in particular key aspects of Chapter Six such as Article 77 that deals with gainful employment and Article 73 on Responsibilities of Leadership. The Bill fails to provide for a mechanism that would allow the EACC to prosecute cases of breach of Chapter Six where the Director of Public Prosecutions refuses to prosecute without good cause. The Bill places on all public officers requirements for compliance that contravene the letter, spirit and intent of the Constitution and Chapter Six. These include the requirement to take Oaths of Office and prohibition of dual citizenship, requirements which the constitution required of State Officers only.

This Bill is clearly in critical condition; it needs to be wheeled straight into the political intensive care unit. If allowed to proceed without receiving immediate and radical remedial attention, it will certainly pose mortal danger to the 2010 Constitution of Kenya. Yet, there is an example from the very same constitution that we can draw from on how the question of leadership and integrity should be addressed.

This is the case of Nancy Makokha Baraza, the Deputy Chief Justice and Vice-President of the Supreme Court of the Republic of Kenya. For those who know Nancy, this has been a very trying and painful case but it nevertheless illuminates just how the state should address questions of integrity across its board with regard to its leadership. Here are some of the lessons.

First, there needs to be express recognition that the 2010 constitution has 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: “…the Constitution of Kenya 2010 is a unique governance charter, quite a departure from the two….earlier constitutions of the post-independence period…the new Constitution…lays a foundation for values and principles that must imbue public decision-making…”

Second, the case against Nancy is a warning shot whitewashes. Under the old order, tribunals would have been set up as a public relations gimmick to deflect public attention and deflate public pressure. The distance between Nancy and her accuser Kerubo in the social and economic food chain is so huge that the former would have been virtually untouchable. Now the warning is stark: as the elite have their say, Wanjiku will have her way.

The third lesson from Nancy’s case is that, properly done, the vetting of state officers need not be a witch hunt. Both Nancy and Kerubo were allowed the space and time to articulate their “truth” and this was then weighed and used to determine Nancy’s suitability to hold office. Indeed, the standard of proof in this case was said to rest at between that required in criminal cases and in civil cases.

Fourth, 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. What needs to be looked at is whether there are any patterns emerging from a state officer’s conduct or whether this is a one-off; which could be considered an aberration. In determining this, it is important to also take into account how that state officer has conducted himself/herself after the conduct first complained about comes to light. In Nancy’s case, the reported approaches she made to Kerubo after the first incident was reported were very damaging to her.

Fifth, this process has amply demonstrated that 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 tribunal stated, “It is evident that the determination of the allegations…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 whether…[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.”

In this regard, and very relatedly, “…the evaluation of conduct of the holders of public office at all levels extends beyond the provisions and limits of legislation. It includes and presupposes the social domain, whose expectations are taken for granted within society, though not expressed in written law.” Kenya’s political elite may continue wallowing in the miasma of the mediocrity of the old order. However, her judiciary is pointing the way to a bright new dawn.

Mugambi Kiai is the Kenya Program Manager at the Open Society Initiative for Eastern Africa (OSIEA). The views expressed in this article are entirely his own and do not reflect the views of OSIEA.