The constitution of Kenya 2919 seeks to mend the social contract broken by government through its authoritarian tendencies thus trying to restore citizen’s confidence in it.
It first recognizes that all sovereign power belongs to the people and that such power can only be exercised in accordance with the Constitution.
The people’s sovereign power is further delegated to State organs — Parliament, the legislative assemblies in the county governments, the national executive and the executive structures of the county governments, the judiciary and independent tribunals—to exercise it on their behalf.
Article 260 describes a state office as any office of the President and Deputy President among others. The office of the Deputy President is a state office which makes him a State officer. For all intents and purposes it is important to revisit chapter six of the Constitution on Leadership and integrity.
Article 73(1) states that authority assigned to a state officer is a public trust to be exercised in a manner that brings honour to the Kenya and dignity to the office, promoting public confidence in the integrity of the office.
Derogation of this would amount to gross violation of the Constitution. Hence the persons who occupy such state offices are not immune to legal challenges for having not met the high standards and thresholds of integrity as outlined therein.
William Ruto was order by the High Court to surrender a 100 acre farm and pay compensation of Sh5 million to the internally displaced person for the illegal occupation of land during the post election violence.
This is a serious indictment on this state officer as it sets the basis for impeachment. First Article 150 (b) (i) stipulates that a Deputy President can be impeached on grounds that there is a gross violation of a provision of this Constitution or any other law.
Firstly, he breached Article 40 (3) which states that the state shall not deprive a person of property of any description , or of any interest in , or right over , property of any description.
Ruto by virtue of being a State officer, he represents the state therefore that makes him liable on that count. He has already been proven culpable by a court of law of competent jurisdiction and ordered to restitute the land and compensate the victim in that case. The constitutional threshold for impeachment is very low.
Secondly, Article 150 (b) (ii) which states that the deputy can be impeached where there are serious reasons to believe that the Deputy President has committed a crime under national or international law or for gross misconduct.
The current ICC charges facing the Deputy President are very serious crimes under international law. Ruto has been charged with crimes against humanity, part of which is forceful evictions of persons.
By virtue of conformation of charges against Ruto and putting him on trial, it raises the bar of evidence available to the belief that the crimes under international law were committed and he was culpable. .
These cases demonstrate prima facie evidence that Ruto cannot be trusted to defend and uphold the Constitution. They are not just hearsay or rumors as they have been subject to competent investigative and judicial processes.
National judicial decisions such as the Mumo Matemu case and Nancy Baraza Tribunal set out the law clearly by explaining serious allegations against a state officer are enough to disqualify them from occupying state or public office.
The highly politicized arguments on ‘until proven guilty’ do not hold water 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.
In both the Nancy Baraza tribunal and Mumo Matemu, it is clearly noted that the Constitution ushered a high threshold of integrity to hold state office, which needs not meet criminality culpability or attribute.
Any departure from this constitutional threshold warrants serious sanctions including removal from office. After all, the principle of ‘until proven guilty’ apply in administration of criminal justice not on matters of ethics and integrity.
The Constitution needs to be upheld and defended therefore persons who do not meet its threshold should vacate state office. Ruto is no exception.
Ndung’u Wainaina is the executive director of the International Center for Policy and Conflict: nwainaina@icpcafrica.org
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