Probing Ababu Namwamba’s team the right step in wrong direction

A Member of Parliament is “a gentleman who looks after the interests of his constituents when they do not conflict with his own.”

Thus says Ambrose Bierce in the Enlarged Devil’s Dictionary.

Too often too long, it seems, the interests of Kenyans have been trumped by those of their representatives.

Which is why the decision by Speaker of the National Assembly Justin Muturi to suspend the sittings of the Public Accounts Committee (PAC) in order to investigate allegations of corruption facing its members is the right step.

Unfortunately, it is too small a step too late. First, its timing is both wrong and suspicious. Second, being Parliament-led, it is unlikely to inspire public trust. Third, even when it is finally concluded, it will likely be either too tame to be acted upon or too politicised to have any credibility.

Let us begin with the timing.

Our MPs’ prodigious appetites are the stuff of legend, so it is extremely suspicious that it is only now that the Speaker has decided to act.

That the PAC was investigating the IEBC based on the “chicken scandal” in the UK cannot be lost on an observer.

It is also instructive that the Ethics and Anti-Corruption Commission (EACC), the other body that might have acted, is also rocked by corruption scandals of its own.

The emerging problem is clear: neither the PAC nor the discredited EACC can credibly attack the electoral commission over corruption.

More is the pity given that Kenya will have a General Election in two years. Yet even with this inauspicious timing, it is still possible to tease some good from the PAC investigation.

SYSTEMIC DISEASE

Unfortunately, Speaker Muturi’s headache is that he is trying to solve a systemic disease by eliminating its latest symptom.

The first step is to design an ethics system that can check the MPs’ voracious appetite for easy cash, which is at the root of their predatory use of their oversight powers.

MPs might retort that there is, in fact, such a code. True. But the current code is the generic one under the Leadership and Integrity Act, 2012 which, invariably, is honoured in breach by all those it applies to.

The original theory behind the Act has proved naïve: the expectation was that State organs would use the generic code as a template for a customised version of their own.

Unfortunately, when laws are this permissive, those meant to be bound take liberties with them. In like vein, Parliament has neither customised the code nor anchored ethical behaviour in the Standing Orders.

The weak ethical framework means that MPs behave as they wish, threaten whom they will when they can and generally think they are exempt from legal obligations. It is obvious that the current generic code, with its frail enforcement, has left the integrity and credibility of Parliament and of the code itself in ruin.

Secondly, Speaker Muturi should know by now that few members of the public believe that a committee of Parliament can honestly investigate another on charges this serious.

Past such investigations inspire little confidence: committees have often used their oversight powers extortionately.

In two cases, this abuse was so egregious that criminal indictments were filed on crapulous evidence.

TURNED INTO AN INQUISITION

In one, the chair of a committee conspired with senior officers of the anti-corruption authority to besmirch and terrorise officers who had refused to pay the bribes demanded.

A letter of complaint to the then Speaker by one of the officers somehow disappeared from the files of Parliament.

Some of these matters are still in court and so not much can be safely said now. However, on a most cursory review, it was obvious that the charges were deeply flawed and the charges meritless.

In fact, once the bribes failed to materialise, the committee’s investigation turned into an inquisition. Inquiries were pushed on a presumption of guilt. Evidence that would have exculpated the accused was ignored.

Wherever the committee failed to unearth evidence of wrongdoing, it inferred that the lack of evidence was proof of a conspiracy of silence.

When it failed to find evidence of corruption, it wrote a dangerously self-referential report that cited its own heated suppositions as proof of corruption.

Lacking evidence that government had lost money, it subtracted the valuation of the property at issue from the sale price and marked down the difference as the “lost money”.

Though the committee’s inquiry purported to be based on audit queries raised in a letter from the Auditor-General to the concerned department, the committee ignored the department’s written answers to those queries.

Where the ministry tried to save money by refusing to hire a Kenyan lawyer at an extortionate price, the committee drew the adverse conclusion that the ministry wanted to hire unqualified professionals.

The report of the ministry’s internal technical committee appeared to exonerate the accused; the Parliamentary committee claimed this was only so because the members were compromised. That is not an investigation. It is a witch-hunt.

This skulduggery only points to what is wrong with an ethics system that rests on self-policing by MPs.

VIRTUALLY USLELESS

It never works and not just in Kenya. Commenting on the Code of Ethics for the European Parliament, one NGO lamented that though the code was a breakthrough, it had been consistently narrowed down by the authorities tasked with the duty to interpret it.

This was not only “detrimental” to its enforcement but also put “the credibility of the Parliament at risk”.

In response, the President of the European Parliament, Martin Schulz, tried to finesse Parliament’s failure to impose sanctions on errant members.

According to him, the code exists to make conflicts of interest transparent; not to stop those conflicts. The truth, in Europe or in Kenya, is that a parliamentary ethics system that is enforced by MPs, without external monitoring, is virtually useless.

Thirdly, even assuming that Speaker Muturi’s investigation gets off the ground, the toxic partisan atmosphere in the National Assembly will almost certainly poison the final recommendations.

If Mr Ababu Namwamba is accused of any wrongdoing, Cord apologists will revolt, screaming against a Jubilee stitch-up of their rising star.

If any of the Jubilants makes the list, it will be the fault of the other faction in the Jubilee coalition undermining their own or working for Cord. In any case, the inevitable acrimony guarantees mutually convenient inaction.

Unleavened by concerns of public interest, the investigation will go the way of many others.

Committees can then go back quietly to what they do best; running on a pumpkin, that is, furious motion without evident progress.

Most Kenyans can script the end to this inquiry: noisy splitting of hairs; obnoxious recriminations; defence of the indefensible; abuse and posturing, all culminating in angry rejection of the report or triumphant adoption by one side and self-righteous rejection by the other.

None of this skeptical analysis implies that trying to enforce ethics in the current Parliament is a waste of time, but merely that Speaker Muturi’s method is mistaken.

He and his colleague in the Senate should take advantage of the crisis to build a lasting system of parliamentary ethics. Such a system needs an anchor in a strong code that is openly and honestly enforced and backed up by an impartial body.

However, if Mr Muturi and Senate Speaker Ekwee Ethuro want to lad this process, they will have to run some risks. Kenya is on the cusp of the 2017 election, which is usually the start of the fundraising season too.

BUILD CONFIDENCE

Ethics reform is neither politically sexy nor electorally desirable. Elections are, after all, won by votes and money.

In this though, they need to know that they have the support of Kenyans. If the public can see that a system of ethics is in place, they will feel confident that MPs will pursue public rather than private interest.

As noted, the Speakers’ efforts will encounter head winds and confront legitimate and fatuous objections. MPs sometimes worry, legitimately, that an ethics system could be perverted to partisan ends by the majority party.

Yet if it is implemented by an independent officer, say a Parliamentary Ethics Commissioner, those who make baseless or partisan complaints will be exposed. This raises the bar and builds confidence in the system over time.

So, Speaker Muturi, go ahead and complete the investigation that you have started. But without more, this could hurt you if it comes to be seen not as a prelude to deep reform but as a conjurer’s trick to impress the public and deflect attention from the disease eating Parliament from within.

Mr Maina is a constitutional lawyer.