Why EACC can’t block suspects from contesting

Monday, February 7th, 2022 04:54 | By
Lilian Omollo
Former Youth Affairs Principal Secretary Lilian Omollo. Photo/PD/File

On May 29, 2018, former Youth Principal Secretary Lilian Omollo graced newspaper cover pages after she appeared in court over suspected theft of millions of shillings at the National Youth Services (NYS).

Omollo, who was at the Ministry of Devolution, was accused of being one of the chief architects of a scandal that led to the loss of millions .

Omollo, who was forced out of the office, is still battling the case in court four years later and only three weeks ago she suffered a blow after her plea to be discharged on grounds that the judges did not have authority to handle the cases after two years, was dismissed.

Despite the court cases, she has now declared a bid to be the next Embu senator joining a swelling list of graft suspects who have expressed interest in various political seats. Omollo says she draws her inspiration from her performance in the ministry, and has expressed confidence that she will oust Senator Njeru Ndwiga.  

“We all know what the work of the senator is, nikutetea tu pesa ya Embu, in my previous work as a professional, what I have been doing is a lot of public service work, a lot of financial management. I understand the delays that make county governments not to get money in time,” Omollo told a meeting of grassroots leaders held at her rural home in Manyatta constituency. The list of individuals battling court cases who are attempting to pacify their records through politics has shot up significantly this year.

Most of them face graft, incitement, assault, forgery and impersonation cases, with governors and MPs leading the pack. And there is nothing stopping the suspects from contesting and the ethics agency admits there is little it can do to stop them.

Ethics and Anti-Corruption Commission (EACC) CEO Twalib Mbarak says although the commission has the mandate of vetting aspirants before IEBC clears them, the agency has no locus standi to bar suspected criminals from vying.

He said Article 99 of the Constitution disqualifies anyone who has been imprisoned for at least six months.  

However, he says, despite the legal hurdle that makes it impossible for people with questionable character from being barred from contesting, voters have a responsibility of interrogating characters of candidates and pick those that meet the Chapter Six cut, adding EACC will publicly expose any dark past of all aspirants to help the electorate make the right decision.

Ultimate decision

“Our position as EACC is that someone who is facing integrity issues should not be allowed into any public office because such a person cannot be trusted with State  resources. For example, if you are hiring an accountant and you get to know one of the applicants has a background of theft, will you hire them?” he posed. 

“If it is a house help, if one has a history of stealing and misbehaving, will you take them in? Why are we being sympathetic to politicians? We are waiting for the interested politicians to apply for clearance and we will vet them, but the ultimate vetting decision will happen on the voting day. After we scrutinise the background of each one of the candidates, we will make the findings public so that the members of the public will make a decision to vote for, after being aware of their individual character,” Twalib added.

Omollo is not alone in her quest. Sirisia MP John Waluke, who is seeking re-election for a third term, is fighting a 67-year jail sentence over theft of Sh297 million through dubious government tenders. His freedom hangs on a pending appeal.

Former governors Ferdinand Waititu and Mike Sonko, who were impeached for abuse of office, are seeking to make a comeback in the coming elections.

Waititu, who has already began campaigns to reclaim the Kiambu governorship, is facing accusations of stealing Sh588 million through dubious tenders. The Assembly  impeached him in 2020 over claims of presiding over a criminal enterprise that was milking the county dry, bad leadership and for depriving a widow of a piece of land worth Sh100 million.

His fate was sealed after the charges were upheld by the Senate.

“I know you are ready to re-elect me as your governor since it was not the voters who removed me from office… I will be seeking the UDA party nomination and the people will decide who becomes the flag-bearer. I am not afraid of anyone since it is the people of Kiambu who will vote for their candidate and not a clique of a few individuals,” said Waititu, who believes he is free to run for office unless he is convicted.

For Sonko, he was impeached in December 2020 over abuse of office and just like Waititu, he was charged with theft.

But he says he is free to vie, and was last week quoted having said: “I know the right time to start my campaigns and where the votes are... Even if I am convicted tomorrow and I have not exhausted all appeal avenues, I have to vie. My case is currently at the Court of Appeal and if it happens that I lose, I will still file another appeal at the Supreme Court.”  

The electorate has over the years voted in people fingered by the government including suspected drug barons and though they were never arrested some have been unable to shake off that tag.

During 2017 elections, Twalib says the commission raised a red flag on 106 politicians who were eying various political seats and shared the information with IEBC but due to the legal loophole, they were cleared and eventually won, and today some of them are in court over criminal charges.

Integrity issues

Former Wajir Governor Mohamed Abdi Mohamud was kicked out of office over allegations of gross misconduct and abuse of office but is keen to make a comeback.

Governors Muthomi Njuki (Tharaka Nithi) and Ali Korane (Garissa) have active cases in court, but they are on campaign trail for re-election. For Kirinyaga Governor Anne Waiguru, she and a section of MCAs are being investigated for graft in a planned payment of Sh52 million for an alleged dubious land survey tender by the county as well as receiving questionable allowances.

Lawyer Danstan Omari said the lowering of the bar could be linked to five-judge bench that dismissed a petition against President Uhuru Kenyatta and his deputy William Ruto’s candidatures over criminal charges at the International Criminal Court, saying the court ruled that all appeal opportunities must be exploited before one is barred. 

Pending case

“Chapter Six of the Constitution said that if anyone has a pending criminal case, they should not be cleared. But when Uhuru and Ruto were cleared to contest despite having charges at ICC, a petition was filed and a ruling made that suspects and those found guilty can be cleared unless all appeal avenues exhausted. That decision has never been challenged,” he told People Daily.

Former Nairobi Governor Evans Kidero who is facing a litany of theft related charges has shifted base to Homa Bay where he is eyeing the governorship seat.

Former Sports minister Richard Echesa who has been battling fraud cases is eyeing Mumias West MP seat, former Kiambu youth minister Karungo Thangwa who was impeached in 2019 over embezzlement of money claims he is eying Senate seat.

Murang’a Governor Mwangi wa Iria who has declared that he will be contesting the presidency has a fight with EACC over graft where the agency is seeking to repossess two properties detectives believe were bought using proceeds of crime.

Embakasi North MP James Mwangi Gakuya is facing charges of mismanagement and embezzlement of Sh39.8 million from the CDF kitty; Lari MP Jonah Mburu is also in court over allegations of stealing CDF funds.

Lugari’s Ayub Savula and his two wives Gatwiri Ringera and Hellen Kemboi in court were charged for stealing Sh122, 335, 500 from Government Advertising Agency  in fraud reported to have been executed through his Sunday Publishers Limited.

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