Despite the resignation of the Ethics and Anti-Corruption Commission (EACC) Chairman Mumo Matemu, the Supreme Court will tomorrow proceed to hear a petition challenging his appointment to the post.
The petition, filed by Trusted Society of Human Rights Alliance, will be heard by the seven judges of the Supreme Court. But the case is viewed by legal analysts as a chance for the Supreme Court to interpret Chapter Six of the Constitution and pronounce the test of integrity threshold required for one to hold a public office.
The question of Leadership and Integrity under Chapter Six has never been interpreted by the highest court since the Constitution was enacted in 2010. "Matemu is out of office yes, but the public interest in this matter requires that the court should interpret Chapter Six once and for all," said Nairobi lawyer Lempaa Soyianka, who has been involved in the case.
Last week, two Supreme Court judges rejected an application by an NGO, Katiba Institute, to be enjoined in the matter as a friend of the court. The organisation owned by constitutional scholar Yash Pal Ghai wanted to assist the court with historical facts about the case. However, the court ruled it was already partisan and could not be neutral in the matter.
Matemu resigned mid last month, shortly after a tribunal had been set up to investigate fresh accusations of corruption against him. He had held the office since August 2013 when he was sworn in.
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Before then, he had overcome a long protracted legal battle to retain the position as he faced accusations touching on his integrity.
Matemu was first appointed to head the EACC in December 2011. His name was forwarded to Parliament but the Parliamentary Committee on Justice and Legal Affairs sitting at that time rejected his name. The committee was however overruled by the whole House and the name approved in an acrimonious debate.
His appointment was challenged in a Nakuru court by Elijah Sigona of the Trusted Society of Human Rights Alliance. A bench of three High Court judges nullified his appointment, but their decision was overturned by Court of Appeal and he was sworn in by Chief Justice in 2013.
But civil society groups still opposed to his appointment said they would take up the matter to Supreme Court.
The questions regarding the allegations against Matemu may not feature prominently in the Supreme Court proceedings as the court will now be called upon to determine the applicability of Chapter Six. Its decision could come in handy in the future efforts to challenge the appointment or election of persons regarded as wanting in integrity.
