Kenya graft probe ministers can keep pay - Tobiko

Ministers and public officers who "step aside" to pave way for investigations are entitled to their full pay, the Chief Public Prosecutor has said.

Responding to specific queries on the remuneration of ministers who leave their work to allow for a probe into their conduct, the CPP, Mr Keriako Tobiko, said there was no provision in law to have those who step aside suffer monetary punishment.

“My understanding is that when you step aside, you are not sacked, therefore, ideally, you retain all privileges of the office but do not perform the functions,” told the Nation.

In the Anti-Corruption and Economic Crimes Act, suspended public officers supposed to get half their pay for the period of suspension. The suspension comes as soon as they are charged in court for corruption. Similarly, the Civil Service has internal rules to punish those whose conduct is wayward.

“The law is not explicit on those who step aside, but it is clear on those who are suspended,” Mr Tobiko said.

However, the law allows suspended officials to enjoy all the perks due to their office.

When it comes to Cabinet ministers, it seems, they will earn their full pay whether they are suspended or just opt to step aside.

Temporary

The interpretation is that “stepping aside”, the way Foreign Affairs Minister Moses Wetang’ula and his Permanent Secretary Thuita Mwangi did, is temporary. It usually implies that the person expects to be reinstated, possibly the reason why Mr Wetang’ula vowed that "I assure you, I’ll be back".

Mr Nicholas Simani, the Kenya Anti-Corruption Commission spokesman said the law was sufficient in cases where public officers have been charged. And ministers are public officers according to the Act.

The chair of the Kenya National Commission on Human Rights, Ms Florence Jaoko and a member of Parliament’s Committee on Justice and Legal Affairs, Mr George Nyamweya, all took the view that the apparent silence of the law should not be exploited to make taxpayers foot bills for corrupt individuals.

Ms Jaoko said, the spirit of the law meant that those who step aside must be treated just as you would the people who are suspended.

“Stepping aside is not something recognised in law,” she said. “Essentially, it means that you’re not working and that you lose certain benefits. The fact that a person has been appointed to act in your position clearly means that you’re not going to work.”

However, she said, the law has to be looked at afresh to spell out how to handle ministers when it comes to suspensions.

“So far, we don’t have a law to deal with an MP under investigations, but we need to look at that,” said the KNCHR chair.

Resign

Clause 80 of the new Constitution empowers Parliament to make laws to ensure that anyone who is under probe for whatever malfeasance is tamed accordingly.

Mr Nyamweya reckoned that perhaps Parliament did not anticipate such a situation - where ministers step aside, but their remuneration is not affected.

“We didn’t deal with it adequately…there’s some grey area when it comes to the law. It’s a question of one’s conscience,” said Mr Nyamweya, who is also a member of the parliamentary Justice and Legal Affairs Committee.

He added that people ought to “resign” as it happens in other jurisdictions, and await the appointing authority to re-appoint them.

“Our attitude seems like it doesn’t matter how improper it looks to take public funds while not doing any work or what conduct was being called into question in the first place,” Mr Nyamweya told the Nation on phone from Tanzania where he’s part of a team observing elections.

He added: “It is a pity that we have to use the law to curb what is normal standard behaviour in other jurisdictions. How do you legislate on attitude?”