NAIROBI, Kenya, Jul 11 – The Office of the Ombudsman says MPs erred in passing the Ethics and Anti-Corruption Commission (Amendment) Bill, 2015, arguing that attempts to change the structure of the commission must be subjected to a referendum.
The amendments sailed through Parliament on Thursday where MPs also voted to sack the current EACC Chief Executive Office Halakhe Waqo and his deputy Michael Mubea.
“A proposal has been made to change its structure so that the Secretary/Chief Executive Officer would be referred to as the Director General with part time commissioners whose role would be merely advisory. It would change the design of the EACC from that of a Commission as provided for in the Constitution to that of an Independent Office.
“Second, the terminology ‘Director General’ is not known in the language of the Constitution. In our view, such a fundamental change to the EACC cannot be done by legislative and would require a Constitutional amendment,” Commission on Administrative Justice Chairman Otiende Amollo opined.
The changes, he argued, were themselves ill-advised as the EACC would cease to be independent and risk interference from the Executive and Legislature.
This is because, he explained, as per the amendments, the Commissioners would cease to be recruited by a selection panel that includes various stakeholders and that job would be transferred to the Public Service Commission.
The Commissioners, he argued, would therefore be stripped of the security of tenure put in place to safeguard their independence.
Amollo also took issue with the amendment that would make the Commissioners part-time and increase their number to five, arguing that they needed to be fully committed to the anti-corruption cause.
“Increasing the number while stating that Commissioners have little work and that they should address only policy matters reflects a contradiction of principles. If they have little work, why add the numbers and cost to the taxpayer?” he posed.
The High Court is currently in possession of a petition challenging the existence of the EACC without Commissioners as is presently the case and Amollo made clear what the Ombudsman’s stand is on the matter.
“The Constitution by design does not give any powers or functions to the Secretary save for serving as Secretary and Chief Executive Officer to the Commission (read Commissioners). Being an appointee of the Commissioners, he or she is under their direct control. It would, therefore, be an affront to the Constitution to transfer the constitutional powers and functions of the Commissioners to the Secretary.”
Amollo also cited, “little or no public participation in the legislative process leading to the passage of the bill,” as another reason it is bad law and why President Uhuru Kenyatta should not assent to it.