CIC headed to court over anti-graft team

What you need to know:

  • A tribunal appointed by President Kenyatta to investigate the conduct of the two commissioners was sworn in on Thursday and has said it was looking to conclude its work in 60 days.
  • As per Rule 40(c) of the Supreme Court Rules, Prof Muigai is required to give his opinion before CIC can file its case.
  • The CIC believes that by virtue of Article 250(1) of the Constitution and Sections 4 and 11 of the EACC Act, whereas the secretariat can carry on with the technical work of the commission, no formal decision of the commission can take place without the commissioners in place.

The legality of the anti-graft secretariat to assume the roles previously played by the commissioners will be escalated to the Supreme Court with the constitutional implementation watchdog seeking an interpretation of the Constitution.

In a communication to Attorney-General Githu Muigai, Commission for the Implementation of the Constitution (CIC) chairman Charles Nyachae said they were intending to move to the Supreme Court to seek an advisory opinion as provided for under Article 163(6) of the Constitution.

As per Rule 40(c) of the Supreme Court Rules, Prof Muigai is required to give his opinion before CIC can file its case.

“We note that critical state organs and offices including your office, the Office of the Director of Public Prosecutions and the Departmental Committee on Justice and Legal Affairs have taken positions that appear to be inconsistent with the proper interpretation of the Constitution on this matter,” Mr Nyachae’s letter to Prof Muigai states.

“In particular we are concerned by positions taken by various offices that indicate that operations of the EACC (Ethics and Anti-Corruption Commission) including its function of recommending cases for prosecution to the DPP continue despite the absence of members of the commission.”

CIC had last week warned that the current composition of EACC does not allow it to function fully.

This was after President Uhuru Kenyatta suspended from office the two remaining commissioners, chairman Mumo Matemu and Irene Keino, on recommendation of the National Assembly.
IN 60 DAYS

A tribunal appointed by President Kenyatta to investigate the conduct of the two commissioners was sworn in on Thursday and has said it was looking to conclude its work in 60 days. The tribunal is chaired by Justice (rtd) Jonathan Bowen Havelock who will work with former commissioner with the Truth Justice and Reconciliation Commission Margaret Shava, Mr Issa Mansur Muathe and Ms Juster Nkoroi who are members of the tribunal.

Ms Keino has since resigned “to spare my family the anguish of a judicial process that will cause them unimaginable pain.” That leaves Mr Matemu as the only one whose conduct the tribunal would be investigating after Prof Jane Onsongo resigned before the National Assembly made its recommendations allegedly after being coerced to do so by senior State House officials.

“I am unable to comment at this stage. Today (Thursday) was only the swearing-in, no more,” Justice Havelock told Sunday Nation on Thursday.

The CIC believes that by virtue of Article 250(1) of the Constitution and Sections 4 and 11 of the EACC Act, whereas the secretariat can carry on with the technical work of the commission, no formal decision of the commission can take place without the commissioners in place.

In CIC’s view, the secretariat cannot submit the investigation files to the Director of Public Prosecution without the commissioners.

Prof Muigai, Mr Tobiko and EACC secretary Halakhe Waqo have, however, differed, arguing that EACC is a body corporate with perpetual succession, and the lack of commissioners cannot stop it from doing its work, including forwarding the files to the DPP.

On the basis of that standoff, CIC now wants the Supreme Court to interpret the Constitution and advise on the way forward.