A recent article in a British online magazine asked: “When should a democracy stop politicians from running for office?” Unsurprisingly, it was prompted by the exclusion of Marine Le Pen from French public office for five years because she was convicted of embezzlement, and by the debate on whether President Trump might somehow wangle a third term.
KENYA’S CONSTITUTION: NATIONALITY
No one can be elected as president or governor, MP, senator, or MCA unless they have had Kenyan citizenship for at least 10 years before election.
Additionally the president must be a citizen “by birth”.
This means someone who when born had at least one parent who was a citizen of Kenya – or someone born in Kenya before independence as a British citizen, with at least one parent born in Kenya. (It’s a bit more complex than this).
Elected officers must, like most other state officers, have only Kenyan citizenship. And the president must also not “owe allegiance to a foreign state”.
This would include holding a position in another country that involves swearing an oath of loyalty to that state.
AGE
Citizens can vote once they are 18 years old. And at the same age they may stand for election. Standing for election requires that one is qualified to be registered as a voter, but to register one must show either a passport or an ID.
The Constitution of Kenya Review Commission draft, 2002, would have allowed those who “will be aged 18 by the time of the next anticipated elections” to register There is no maximum age for elected office. Judges must retire at 80.
And in practice civil servants are supposed to retire at 60. Yet presidents and governors and legislators – making crucial decisions all the time – have no age limit. Of course the argument against a limit is about democracy - the people should choose.
We don’t allow the people to choose the young, people with dual nationality, people with certain histories – but they can choose people who are “past it”. An MP does not serve only those who elected them but is involved in decision making for the whole country. Does this make sense?
The medical profession proposed to the CKRC a limit of 70 for presidents, and the CKRC draft included this. Yet that was for a largely ceremonial president. The prime minister – head of government – would have had no limit. Mwai Kibaki failed to realise this when he became fixated on this point. He would surely not have wanted to be president under the new constitution in the CKRC system.
Anyway that draft would have exempted those elected in the first election after it came into force. Whatever the reason the provision, disappeared from later draft constitutions. (Kibaki was arguably an example of what the doctors suggested – that the older people may not only get physically and sometimes mentally weaker (look at Biden) but they take much longer to recuperate from accidents and illness. Kibaki had both.)
OTHER OFFICE HELD
Any public officer must normally resign before standing for election. There may be fears of their campaigning at public expense, and perhaps having influence on the result because of their office, while most members of the public service are supposed to be politically impartial, which is incompatible with seeking election. Obviously this rule does not apply to anyone seeking reelection to a post they already hold.
No one who is a public officer may stand for president except the sitting president and the deputy president – or a member of parliament. The last exception was added by – guess who! That committee of MPs responsible for changing the system from that recommended by the Committee of Experts (and generally the CKRC) to our current, US type system. Governors, MCAs, Cabinet secretaries, judges are covered by the general prohibition.
While an MP may freely stand for election - even if in a different constituency - an MCA cannot stand as MP without resigning their seat before nomination, potentially crippling a county assembly if many members want to try for Parliament. This is so even though they automatically cease to be an MCA on an election day. Courts have rejected this point, holding that saying they cannot be elected means they cannot be nominated without resigning as MCA – because an election is a process not just election day.
This means that a difference in wording – “nominated” for president but “elected” for MP - does not have a different meaning, contrary to a basic principle of interpretation.
EDUCATION
The constitution envisages Parliament setting educational qualifications for being an MP.
In fact Parliament has tried to require minimum educational standards for MPs, governors, presidents and others. But almost all the law has been declared unconstitutional because of lack of public participation. Under the old constitution a person could not be an MP unless able to speak and read Kiswahili and English adequately. This is not in the current constitution.
The CKRC draft said MPs must have “attained at least a form four standard of education with a pass, and [be] proficient in Kiswahili and English” but this disappeared during the Bomas process and the issue was left to Parliament.
PAST BEHAVIOUR
A person may not be an MP if at election time they are subject to a sentence of imprisonment of six months or more, unless the appeal process is still ongoing. This is presumably about inability to serve rather than the particular offence.
But people who have misused or abused a state or public office or violated Chapter Six on leadership and integrity are barred for life.
There are two overlapping provisions. One is as wide as the previous sentence. The other is about people removed from office through a disciplinary procedure for offending constitutional articles about financial behaviour, or a few other issues. Incidentally the former DP was found guilty by the Senate on one of the last group of constitutional abuses: demeaning his office.
Other charges the Senate convicted on seem to fit under “misuse or abuse of his office” but whether they do fit is something still to be decided by the courts.
TERM LIMITS
Kenyans know that the president has at most two five-year terms (unless they previously stepped into the Office of President for less than half of a presidential term).
Hopefully they are aware that extending the term of Office of the President by amending the constitution requires a referendum – and will vote against if there is a referendum on this point. President Trump has apparently been raising issues like – does the number of terms rule apply if they are not consecutive (because his two terms have bracketed one of Biden).
Another ingenious idea is that in 2028 the current Vice President (Vance) might stand as president and Trump as VP only for the former to resign after being sworn in so Trump becomes president. Such a device would not be possible here. Quite apart from the improbability of the VP carrying out his side of the bargain, our constitution says “A person shall not hold office as President for more than two Terms”. If the Vance/Trump device (manipulation) were used here, the DP becoming president would serve a full term, which is not allowed.
Could a former president even stand as DP here? A strong argument against a president who has served two terms becoming DP is precisely the risk of their having to step into the presidential role for a prohibited third term
Finally – that article I mentioned ended “Any person who is sincerely in favour of free elections should care as much if not more about how electors are being restricted than about who can be elected.” This is a real issue here - and not just for newly 18-year-olds.
