Why Sonko and all others charged must vacate public office - Beaking Kenya News

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Sunday, 8 December 2019

Why Sonko and all others charged must vacate public office

Nairobi Governor Mike Sonko after his arrest on December 6, 2019.
The accountability of public officials is deeply ingrained within the country's constitutional framework.
Under the new dispensation, public officials should always perform their duties in the public interest, uphold high standards of integrity and ensure their conduct brings honour and dignity to the office they hold.
Though criminal jurisprudence presumes a man innocent till proven otherwise, your vacating public office does not fall afoul of this proposition.
It has no bearing on whether you are guilty of the alleged offence.
On the contrary, it represents a distinct legal determination of persons suitable for holding public office with integrity and credibility.
The principle of 'until proven guilty' applies in the administration of criminal justice, not on matters of ethics and integrity.
The Constitution ushered in a high threshold of integrity for state office, which needs not meet criminality culpability or attribution.
Determination of suitability for holding public office has no bearing on your guilt or innocence, which can only be judged at a criminal trial.
To conflate the two is jurisprudentially flawed and makes a categorical mistake.
The 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 public office.
It is not about the individual desire to serve in a 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 of a person’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 election or appointment to public office.
To take a contrary position is to defeat the object of the constitution on integrity in public office.
Integrity and credibility are the life-blood of institutions in a true constitutional democracy.
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 the deterioration of the credibility enjoyed by the institutions.
Nancy Baraza Tribunal's highly politicized arguments on the mantra of until proven guilty do not hold water on matters of ethics and integrity since the Constitution shifts from the traditional mere presumption of innocent until proven guilty in criminal liability to the threshold of suspicion and belief of having violated any section of it.
The ruling by the Judicial Tribunal that investigated the conduct of dismissed Deputy Chief Justice Nancy Baraza raised the integrity bar required of State and public officers.
Contrary to many arguments on innocent until proven guilty, the issues of criminal records are only a part of a core set of integrity parameters, which were well developed by the tribunal.
The tribunal was categorical that it was not investigating criminal conduct but rather her conduct in the fiasco.
For this reason, the tribunal said, "we have spread our net wide and made reference to Chapter 4 on the Bills of Rights, Article 10, Article 28 and Article 73 to ensure no infringe of rights of the person while protecting the integrity of the institution of the judiciary".
The tribunal made a distinction between the presumption of innocence as articulated in the administration of criminal justice and integrity standards expected of public/state officers.
The tribunal asserted that the standard of proof touching on the conduct and integrity of public officers is neither that of criminal law, that is beyond reasonable doubt nor that in civil cases, which is on a balance of probability.
The tribunal stated that unethical conduct or lack of integrity by state officers only required accurate proof and material facts. The innocence of a suspect until proven guilty is within the purview of the administration of the criminal justice system but cannot withstand or hinder the well-defined and enshrined national principles and values of ethics and integrity.
In any case, when your conduct leads you to reasonable suspicion from a law enforcement agency to prefer a charge to be drawn against you, your integrity is called to question.
Consequently, the bar set by the Judicial tribunal on Nancy Baraza on the question of integrity demand that any person adversely mentioned and or linked to corruption, economic crimes, and criminal act must resign or be forced to leave public/state office.
This is the core reasoning behind Justice Mumbi Ngugi ruling to bar public/State officials charged in a court of law from holding state/public office.
It is also the bedrock of Chapter Six of the Constitution.
Judges in the Integrity Case involving Uhuru Kenyatta and William Ruto flatly failed to address themselves to this fundamental issue and instead turned the case into a presidential petition.

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