CIC advisory fatally polluted by a conflict of interest


Recently, the Commission for the implementation of the constitution, CIC, published an advisory opinion, ostensibly for general public consumption, but clearly directed at the Director of Public Prosecutions.

The upshot of this advisory was that the DPP cannot receive files, or act on files forwarded by the Ethics and Anti-Corruption Commission while the latter body’s commissioners are suspended orunder investigation. In other words, the CIC called the war on corruption to a halt until commissioners are reinstated or new ones installed. This advisory was bizarre and singular in its forceful misdirection.

Now the Ethics and Anti Corruption Commission is a Chapter 6 institution. It draws its life and existence from the need to enforce the requirements on leadership and integrity, in the interest of eradicating turpitude and restoring and/or maintaining probity in public office.

Article 79 specifically enjoins Parliament to enact legislation to establish the EACC. It directs that EACC shall have the status and powers of a commission under Chapter 15. Under this Chapter, of particular interest is Article 253 which stipulates that each commission and each independent office shall be a body corporate with perpetual commission and seal, and is capable of suing and being sued in its corporate name.

This is important because the CIC suggested in its advisory that EACC is only duly constituted if the commissioners are in situ. Yet Article 250 indicates that a member of a commission may serve on a part-time basis. Indeed, the legislation enacted in obedience with Article 79 distinguishes the role of commissioners from that of the commission.

The commission shall investigate and make recommendations to the DPP on matters related to corruption, among other functions. The Ethics and Anti Corruption Act, number 22 0f 2011 restricts the role of commissioners to the in-house mandates of policy formulation, provision of strategic direction to the commission, establishing and maintaining strategic linkages, deal with allegations of misconduct and corruption by commission staff. It is mandated to meet at least once every quarter. This is clearly set out in section 11(6) of the Act. Section 13 sets out the role of the Commission, which goes into the substance of Chapter 6 enforcement mandates.

Although section 4 defines the Commission as comprising the Chairman and 2 other members, the operational hub of the EACC is the Secretary, who is the chief executive AND accounting officer of the commission. The Secretary is responsible for carrying out the decisions of the Commission, day-to-day administration of the affairs of the Commission, the supervision of other employees of the Commission and the performance of any other duties assigned by the Commission.

Now, the CIC exercised mischievous selective reasoning in its advisory. It placed unnecessary emphasis on section 4, and paid no heed to Chapter 15 of the Constitution. An entity which possesses perpetual succession cannot die. It cannot be disabled by incapacities related to the individuals serving it. It operates in its own name, not, for instance, Mumo Matemu carrying on business as Ethics and Anti-Corruption Commission. In recognition of this basic legal reality, Paragraph 8 of the Second Schedule of the EACC Act states that “no proceedings of the Commission shall be invalidated by reason only of a vacancy among the members thereof”.

So, why did the CIC go so far out on a limb which so perilously gave way? Why did they railroad the DPP with a tailor-made advisory calculated to hamstring corruption-related prosecution? Why didn’t the CIC consider all possible elements and generate an opinion which enables their client take decisions on their own? Because the advisory pre-empted independent consideration by DPP or even EACC. What conceivable public interest is served by this harebrained advisory? For certain, there must have been interest of a certain hue or other at play.

By law and best practice, all conflict of interests must be disclosed by persons affected by it. Taking a self-serving decision, in the full knowledge that certain private benefit will accrue without declaring this constitutes unspeakable vulgarity and hair-raising impunity. Chapter Six requires public officers to be honest and impartial in decision making. They are enjoined to ensure that their decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices. Beyond that, public officers are expected to be guided by the spirit of selfless service based solely on the public interest and demonstrated through honesty in the execution of public duties, and the declaration of any personal interest that may conflict with public duties.

As demonstrated above, the CIC advisory is suspicious. It doesn’t meet muster, and is utterly devoid of rigorous and conscientious reasoning which upholds the public interest in the war on corruption. The CIC goes out of its way to restrain the DPP from performing its duties. It is suspicious.

A few weeks ago, a number of public figures were required to step aside and allow investigations into allegations of corruption made against them. Among them is Nduva Muli, Principal Secretary for Transport. Unless and until found guilty after due process, Muli is innocent as far as the allegations are concerned. It is a fact well established in the public domain that Muli is married to Elizabeth Muli. Now, Mrs Muli serves as the deputy chairperson of the CIC. One would think that before pronouncing itself so forcefully and so negatively on ongoing corruption investigations and prosecutions – to the extent of arresting the DPP – this material disclosure should have been made. Obviously, the conflict of interests is indisputable. Obviously, the advisory’s already shaky legitimacy has been worsened by the possibility that it was actuated by a conflict of interest.

In the war against corruption, it would be nice to know that we are all on one side. But when gamekeepers turn poacher with such shamelessness, anxiety abounds. Can we try harder? Is integrity simply impossible?

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