MUNYIRI PETER WACHIRA

E14/06911/22
B.ED SCIENCE MATHS/ CHEM

November, 2022 PHIL

108: ETHICS, INTEGRITY AND NATIONAL VALUES
CAT 1

REVIEW AND CRITICS OF THE CHAPTER SIX OF KENYAN

CONSTITUTION

1: REVIEW OF CHAPTER 6 OF KENYAN CONSTITUTION OF 2010

CHAPTER 6: LEADERSHIP AND INTERGRITY
Mainly this chapter talks about leadership and integrity and the following are its components:

73. Responsibilities of leadership

1. Authority assigned to a state officer:
a) Is a public trust to be exercised in a manner that :-
I. Is consistent with the purpose and objectives of this constitution;
II. Demonstrate respect for the people;
III. Brings honour to the nation and dignity to the office ,and
IV. Promotes public confidence in the integrity of the officer, and

b) Vests in the state officer the responsibility to serve the people

2. The guiding principles of leadership and integrity include:-

a) Selection on the basis of personal integrity, competence and suitability ,or election on a free and
fair elections;
b) Objectivity and impartially in decision making, and in ensuring that decisions are not
influenced by nepotism, favourism, other improper motives or corrupt practices
c) Selfless services based solely on the public interest;
d) Accountability to the public for decisions and actions; and
e) Discipline and commitment in service to the people.

74. Oath of office of state officers

 Before assuming a state office, acting in a state office, or performing any function of a state office, a
person shall take and subscribe the oath or affirmation of office, in the manner and form prescribed by
the Third Schedule or under an act of parliament.

75. Conduct of state officers

1. A state officer shall behave, weather in public and official life, in private life, or in association
with other Persons in harmonious way without personal interest.
2. A person who contravenes clause (1), or Article 76, 77 or 78 (2)-
a) Shall be subject to the applicable disciplinary procedures for the relevant office ;and
b) May, in accordance with disciplinary procedures referred to in paragraph (a), be dismissed or
otherwise or otherwise be removed from the office.

3. A person who has been dismissed or otherwise removed from office for a contravention of the
provisions mentioned in clause (2) is disqualified from holding any other state office.

76. Financial probity of state officers

1 A gift or donation to a state officer on a public or official occasion is a gift or donation to the
republic and shall be delivered to the state unless exempted under an act of parliament.
2. A state officer shall not:-
A. Maintain a bank outside Kenya except in accordance with an act of parliament; or
B. seek or accept a personal loan or benefit in circumstances that compromise the
integrity of the state officer.

77. Restrictions on activities of state officers.

1. A full-time state officer shall not participate in any other gainful employment.
2. Any appointed state officer shall not hold office in any political party.
3. A retired state officer who is receiving a pension from public funds shall not hold more than two
Concurrent remunerative positions as chairperson, director or employee of-
a. A company owned or controlled by the state ;or
b. A state organ
4. A retired state officer shall not receive remuneration from public funds other than as contemplated
in
Clause (3)

78. Citizenship and leadership

1. A person is not eligible for election or appointment to a state office unless the person is a citizen of
Kenya
2. A state officer or a member of defense forces shall not hold dual citizenship
3. Clauses (1) and (2) do not apply to:-
 A. judges and members of commissions; or
B. any person who has been a citizen of another country by operation of that country’s
law, without ability to opt out.

79. Legislation to establish ethics and anti-corruption commission

Parliament shall enact legislation to establish an independent ethics and anti-corruption commission,
which
Shall be and have the status and powers of commission under chapter 15, for purpose of ensuring
compliance with, and enforcement of, the provisions of this chapter.

80. Legislation on leadership

Parliament shall enact legislation –

a. Establishing procedures and mechanisms for the effective administration of this chapter;
b. Prescribing the penalties , in addition to the penalties referred to in Article 75, that may be
imposed for a contravention of this chapter,
c. Providing for the application of this chapter , with the necessary modifications , to public
officers; and
d. Making any other provision necessary for ensuring the promotion of the principles of
leadership and integrity mentioned in this chapter, and the enforcement of this chapter.

2. CRITICS OF THE 2010 KENYAN CONSTITUTION

Implementation of chapter 6 of 2010 Kenyan constitution has been hard and full of
setbacks.
This act and other status do not have enough power to ensure that this chapter 6 is enforced
and implemented. The agency tasked to enforce this chapter does not have sufficient
powers and even resources to enforce accordingly. The laws are more observed in breach
than compliance as a consequence of this weak enforcement structure. These challenges
outlined herein may be addressed as follows;

 Lack of comprehensive mechanisms for determining compliance with this chapter

for individual seeking appointive and elective positions in state and public offices.
A more elaborate mechanism needs to be put in place such as the formalization of
chapter six working group to participate in joint vetting process for individual
seeking this positions.
 Ambiguity previously expressed in judicial interpretations on enforcement of this
chapter has also caused a setback in effective implementation of leadership and
 integrity provisions. Recently Supreme Court declined to give Kenya National
Commission on Human Rights an advisory opinion and instead directed this to be
pursued from the high court. It follows that courts need to dispense with this matter
urgently for clear guidelines on application and enforcement of this chapter.
 Lack of clear procedures for appropriate disciplinary action, prosecution and
removal proceedings for elected leaders who contravene chapter six. A distinction
should be put in place within the law on the disciplinary actions arising from a
contravention of this chapter distinct from removal arising from criminal processes
or those grounds outlined under any provisions for the removal from office of state
or public officers
 Bureaucratic procedures for conducting lifestyle audits including cumbersome
procedures for access to wealth declaration information of this officers by relevant
enforcement agencies. There is thus a need to further enhance legal provisions on
the grounds and process for lifestyle audits to be carried out with supervision of the
courts to avoid the abuse of such process for extrajudicial or political ends.
 Conflict of interest and abuse of office among other violations continue to manifest
in public service including in appointive and recruitment, procurement and other
key government processes at all levels of government .There is need to establish a
clear legal framework for handling breaches of relevant codes at institutional level
including legal penalties and criminal sanctions.
 Some state officers have been found with some cases to answer in the court of law,
but still they hold positions in the state offices as they wait court ruling. There is a
need to establish a law that any state officer having a case in the court of law
should resign immediately even before court ruling to maintain integrity of state
offices.
 Most Kenyans are not aware on this chapter six but still they hold various private
offices hence a need to establish a committee that its purpose will be to educate
citizens on the components of this chapter.
 According to chapter 6 under article 76, that a gift or donation to a state officer is a
gift or donation to the public have to be reviewed and instead such gift and
donation be owned by the state officer given since it was due to the high standard
of leadership shown by the state officer but not the state.
 Lack of clear procedures to handle state officers who go viral and use insulting
words or bad utterances as it has been observed recently by some cabinet
secretaries and mostly members of parliament, since such leaders have to be
dismissed hence a need to establish a commission that will keep this state officers
on their utterances.
 There is political interference with institutions tasked to implement this chapter
from the government of the day in discharge of mandate. This arise from the fact
that commissioners are appointive positions appointed subject to the approval of
National assembly. The commission also report to the parliament and the
appointing body, the Presidency, which is likely to interfere there independence. In
many cases they may delay investigating personalities in government owing to the
fact that they are answerable to parliament and can be removed from office in the
same regard.
 Lack of political will to fight against corruption as it has been observed that the
presidency appoints people to state offices despite public outcry as to their
 character and integrity , hence a need of all government agencies and institutions to
ensure that this people don’t have a chance to work in state offices.
 There is a weak legislative frame work related to enforcement of this chapter and
the fight of corruption is weak and fragmented. For instance, the ACECA, EACC
act, public officer ethics act and the leadership integrity are among such laws.
These laws create duplicity in some cases while they are inconsistent with each
other in some cases. There is a need to harmonize them and have one
comprehensive frame work to guide leadership and integrity act in Kenya.
 Weak enforcement mechanism since investigations is carried out by EACC but
prosecutions are made by Director of Public Prosecutions. There is thus a tag of
war between EACC and DPP on delay in prosecutions which makes EACC lack
mechanism of enforcement. Further, DPP in some cases commences investigations
afresh causing more delays before a prosecution is commenced. There is hence a
need to give EACC powers to investigate and as well as to prosecute.

RECOMMENDATIONS
Performance contracting.Some recently introduced practices in the public service are yet
to be institutionalize in Kenya including performance contracting although this has been
seen to work well where officers have set target to achieve within greed upon families, it is
yet to cascaded to lowest public services.It is expected that cascading.The idea of the
lowest code of public service will be substantially improve public service delivery and in
the process institutionalize transparency and responsibility ideals.

Empowering the legislative in order to improve parliaments weight there is need to train
and support MPs to ensure they acquire knowledge on burget and burgetary process,In
addition,the legislative should be more open to the media and civil society to ensure
effective parliamentary oversight in addition parliamentary committee should process the
relevant competitive that enables them to understand complete matters.
They should be supported by well trained staff.
Leadership and Integrity act .The leadership and integrity low should be amended to
provide for setting standard matching spirits of chapter six.