BY SAMUEL KIMEU
The much touted 60-day deadline to deal with 175 corruption cases, imposed by the President, lapsed two weeks ago.
Of the 124 cases listed in the Ethics and Anti-Corruption Commission report presented to Parliament by the President in March 2015, investigations had been concluded in 56 cases by the deadline date.
From a political perspective the President’s gesture to release the EACC report dubbed the ‘list of shame’ may have been tactical, but the list was not comprehensive – several cases already in the public domain were not listed. EACC requested 30 more days to conclude investigations on 68 pending cases.
The proposed timeline may not be practical, considering EACC’s success rate in 60 days. While it is important to set deadlines, the EACC should not raise public expectations by over-promising and under-delivering.
Concluding investigations within 60 days was bound to be a hard tackle for EACC considering its capacity and past record. Kenyans are looking for accountability and will be satisfied with general progress irrespective of timelines. Still many questions abound.
These include understanding why it was necessary for the presidential intervention for files to move forward. Are there gatekeepers for corrupt interests within the anti-corruption legal chain? To answer this question, it is important to establish an independent audit to review the fate of all corruption complaints handled by EACC since its inception to better understand the bottlenecks to successful corruption investigations and prosecutions.
Over the years, the work of EACC has not been scrutinised as it should. In order to determine the necessary policy, legal and administrative adjustments needed for better results in corruption investigations, Parliament ought to institute such an audit.
The 60-day deadline provided a window to initiate much needed comprehensive policy, legislative and institutional reforms to anchor the fight against corruption. These should be prioritised moving forward. One of the key selling points of the Constitution of Kenya, 2010 is Chapter Six on leadership and integrity.
The entrenchment of leadership, ethics and integrity in the Constitution infused a high level of expectation among Kenyans regarding the quality of our leadership and level of accountability post 2010. However, the spirit and letter of the Constitution are yet to impact our leadership. The Leadership and Integrity Act was severely watered down at cabinet level and in the last Parliament.
It is inadequate too for the effective administration of Chapter Six. The Ethics and Anti-Corruption Commission Act also requires amendment to better situate the fight against corrupt on a more effective legal framework.
Following the release of the EACC report in Parliament, the President asked those named to ‘step aside’. The President’s request to Cabinet and Principal Secretaries, to step aside was perplexing, as these are his appointees that he could have suspended. ‘Stepping aside’ is not provided for under any law in Kenya and the exact meaning and implications of it are not understood.
The Anti-Corruption and Economic Crimes Act provides for suspension of a public officer after being charged with an economic crime until the officer is cleared. Elected officials mentioned in the report including Members of Parliament, Senators and Governors disregarded the order to ‘step aside’ citing the lack of legal provisions for vacation of office by elected officials. There is therefore need to ensure provisions for vacation of office by both elected and appointed officials undergoing investigations on corruption or other misconduct are firmly grounded in law.
In terms of institutional reforms, restructuring EACC should form a key priority considering recent events at the Commission that led to the suspension and subsequent resignation of the EACC commissioners.
The conflict witnessed between the commissioners and secretariat, which has been observed in other independent commissions, predicates the need to review the structure of EACC and refine the functions of the commissioners and secretariat. While the commissioners should provide strong oversight function on the secretariat, they should not be involved in the day to day operations and should serve on a part time basis.
The nature of work of the commissioners as articulated in the EACC Act does not necessitate them to serve on a full time basis. The Constitution provides that a member of a commission may serve on a part time basis. Nonetheless, serious allegations were made against the commissioners and leadership of the secretariat.
Until these allegations are credibly investigated and discounted, they can only hurt the image of the EACC in the eyes of the public. Worse still, political actors chose extra-legal means to haunt EACC commissioners out of office, despite their security of tenure.
The President while presenting the EACC report to Parliament directed the Attorney General and the Department of Justice, the National Treasury and EACC to develop a comprehensive National Ethics, Integrity and Anti-Corruption Policy.
The AG had earlier in the year constituted a task force to propose appropriate changes to the law and structure of anti-corruption agencies, and reforms for promoting ethics and integrity. It is hoped that these ongoing processes propel legal, policy and institutional reforms required to set Kenya on the right track in slaying the monster of corruption.
(The writer is the Executive Director, Transparency International Kenya. @SamuelKimeu)