Why top officials’ hands are tied in war against corruption

NCIC chairman Francis ole Kaparo at a past event. Mr Kaparo has said there are constitutional hurdles in the war against corruption. PHOTO | NATION MEDIA GROUP

What you need to know:

  • The NCIC chairman accused the courts of being an impediment in the fight for integrity by  issuing injunctions and dragging cases.
  • Of the 106 the anti-graft agency wants barred, those that the EACC is investigating are 11 vying for governor, one for senate, two for woman representative, 13 for MP and 14 for MCA.
  • The electoral agency fined Bungoma Governor Ken Lusaka and his Ford-Kenya rival Wycliffe Wangamati Sh1 million each payable in 24 hours over the June 2 chaos.

An editorial cartoon appearing in the Friday edition of the Nation depicting vetting agencies who can only look on and do nothing aptly captures how Kenya lost the war on corruption.

In the cartoon, electoral agency chief Wafula Chebukati, his Ethics and Anti-Corruption Commission (EACC) counterpart Archbishop (rtd) Eliud Wabukala, and National Cohesion and Integration Commission head Francis ole Kaparo are looking helplessly on as wananchi carry a politician atop a cart on their shoulders.

The politician is shown as carrying sacks of hate speech, incompetence, graft, laziness and war mongering as the wananchi sing “Our community is being targeted”.

“Our tribesman must be on the ballot in August!” one of them says.

CONSTITUTION

Yet another remarks: “Integrity? What integrity?”

After an increased clamour to entrench an ambitious Chapter Six of the Constitution, with the EACC and a group of civil society groups releasing lists of individuals they wanted barred from the August 8 polls over integrity, all these efforts appear to be coming to naught.

“What the Constitution provides for in its right hand on integrity, it makes it impossible to enforce on the other.

It has set endless hurdles to arrive at barring those who do not meet the integrity threshold,” Mr Kaparo said, summarising the reasons why Kenya has lost the war on corruption.

APPEAL

He went on: “The law says you can investigate. But that is not enough. You can charge, but that is not enough. You can convict but still that is not enough.

You can appeal, but that’s not enough. Endless hurdles.”

The NCIC chairman accused the courts of being an impediment in the fight for integrity by  issuing injunctions and dragging cases.

“Unfortunately, sometimes the courts become the greatest supporters of impunity. Every time a wrongdoer is caught, the court grants an injunction, the case drags on for years and the wrongdoer goes free,” said Mr Kaparo in a passionate speech at the National Elections Conference.

Insiders at the Independent Electoral and Boundaries Commission (IEBC) said this battle to encompass integrity – but with the fundamental right, and the polls team has said as much, that one cannot be barred until they have exhausted all avenues for appeal even if convicted – has sat in the middle of an otherwise ambitious, well-meaning provision.

CIVIL SOCIETY GROUPS

Transparency International Kenya Executive Director Samwel Kimeu, who together with other civil society groups had named 20 people they wanted barred from running, said “it will be a tragedy” if the electoral commission fails to bar the individuals.

“IEBC has told us they will drop names from the gazetted list and we are waiting for this. We will be very disappointed if they do nothing about it,” said Mr Kimeu.

“If that does not happen, any Kenyan, and this is presumptuous, can go to court and invalidate their election on grounds that they were not qualified to be candidates.”

Of the 106 the anti-graft agency wants barred, those that the EACC is investigating are 11 vying for governor, one for senate, two for woman representative, 13 for MP and 14 for MCA.

PENDING CASES

Those that have pending cases, according to data obtained from the EACC, are six governors, two senators, one woman representative, nine parliamentary aspirants and 23 MCA hopefuls.

“We have submitted to IEBC a list of 106 individuals whom we think ought not to be allowed to contest political seats due to outstanding issues in line with the law,” said Mr Wabukala.

On Saturday, the polls team refused to comment on whether they can still block the candidates in question, but Mr Chebukati had given the clearest indication yet two weeks ago, that they might not.

“This collaboration (with vetting agencies to screen candidates before giving the nod) can only be done within the law, and there are serious challenges. This chapter Six Working Group must live beyond this election. I hope Parliament shall enact laws to remove the legal roadblocks that this working group has encountered during this electoral period, to secure its longevity,” he said.

HONEST LEADERS

He linked the implementation of the Constitution to the leaders Kenyans elect, terming it a machine that can only work with “honest leaders and men of strong character”.

“If the people who are elected are capable, and men of character and integrity, then they would be able to make the best even of a defective Constitution,” Mr Chebukati said, quoting Dr Rajendra Prasad, a former President of the Assembly of India.

But it is not all gloom and doom in the battle for integrity in politics.

This week, the electoral agency fined Bungoma Governor Ken Lusaka and his Ford-Kenya rival Wycliffe Wangamati Sh1 million each payable in 24 hours over the June 2 chaos.

VIOLENCE

Similarly, the commission’s Code of Conduct Enforcement Committee, chaired by Mr Chebukati with the six commissioners as members, slapped Kibwezi East Jubilee aspirant Philip Kaloki with a Sh500,000 fine for violence meted out by his supporters on the incumbent Jessica Mbalu of Wiper.

The team also fined Rarieda MP hopeful, independent candidate Netto Adhola Sh250,000 for using ODM colours and pictures of Raila Odinga in his campaign posters.

There is also the matter of what the Odinga-led Nasa says was the continued use of State resources and open campaigning by public officers.

CABINET SECRETARIES

The Ombudsman, Dr Regina Mwatha, had in an advisory the Cabinet Secretaries as well as other public officers stopped them from campaigning.

“The Leadership Act exempts the Cabinet Secretaries from participating in campaigns.

Again, let’s distinguish between campaigns and the use of State resources. Using State resources for campaigns is forbidden for all,” IEBC commissioner Dr Roselyne Akombe told the Nation.