Stand on Chapter Six returns to haunt President in anti-corruption crackdown

The President’s new leadership in the fight against corruption, initially hailed as courageous, is now coming under pressure, as names of implicated persons become public.

A number of shortcomings have been pointed out which, if avoided, would have saved the President’s action from some of the resistance it is now attracting.

To begin with, the President has started an anti-corruption programme that relies on a set of constitutional provisions, which his administration is seen as having previously demonised and actively undermined.

The war against corruption is grounded on Chapter Six of the Constitution, which addresses leadership and integrity in public office.

In the lead-up to the elections held in 2013, where Uhuru Kenyatta and William Ruto were elected President and Deputy President, attempts were made to block the two from running for office because of the cases that they faced before the International Criminal Court.

The argument against their candidature was that because the ICC had found that there were “substantial grounds to believe” that they were either contributors or indirect co-perpetrators to crimes against humanity committed in Kenya between December 2007 and January 2008, they were unsuitable to run for office.

Both in court and in political rallies, Mr Kenyatta and Mr Ruto disputed this assertion, arguing that the decision on whether they were suitable to serve as president and deputy should be made, not by a court of law, but by the people of Kenya through the ballot.

The High Court ruled in their favour, holding in the suit that had been filed to block their candidature, that article 1 of the Constitution places all sovereign power on the people of Kenya to be exercised only in accordance with the Constitution.

According to the court, limiting the political rights of the parties that had sponsored Mr Kenyatta and Mr Ruto would be inimical to the exercise of the democratic rights and freedoms of their members.

In the wake of attempts by President Kenyatta to compel elected leaders, including governors and senators, to vacate office until they are cleared of corruption, the President’s directive has been met with his own previous argument.

Referring to Deputy President Ruto, Meru Governor Peter Munya has pointed out that “some of them are facing serious criminal charges in a global court,” yet they have not resigned.

The argument is that if it was fine for President Kenyatta and Mr Ruto to remain in office while facing charges before the ICC, it should be fine for others to also remain in office while facing anti-corruption charges.

REJECTED DIRECTIVE

Another point of contention is reflected in the reaction by the Opposition, the Orange Democratic Movement, to the President’s announcement.

While ODM leader Raila Odinga led in making demands for accountability against corruption, his party has now rejected the President’s directive, terming it “whitewashing corruption”.

Their contention is that “the presidency is itself a leading suspect in the massive corruption scandals muzzling the nation”, and that “top political leaders and technocrats in the presidency have been linked to acts of bribery and collusion to defraud the public of money, land, playgrounds, procurement indecencies, you name it”.

The assertion is that the government is involved in a selective approach to the fight against corruption, and that incidents which should be the subject of focus by the EACC have been left untouched. As part of its grievances, the Opposition has made the point that “the IEBC remains intact and does not feature in the President’s list, yet its partners in crime are in jail in London”.

While this claim can only be ascertained upon a full disclosure of the report of the EACC, it is instructive that some of the infrastructure projects, in which the Jubilee government takes considerable pride, have been criticised as questionable because of claims that tenders for these were awarded arbitrarily, pricing was varied without justification, or that no feasibility studies preceded some of the projects.

It looks likely what been held out as corruption is highly subjective, and does not include all the recent corruption scandals.

The ODM statement points to a further problem, to do with the EACC. According to the opposition party, “we are talking about the same EACC that is at war with itself, where juniors have demanded the sacking of their boss, the chairman Mumo Matemu”.

Undeniably, the internal condition of the EACC is an issue of concern. Initial recriminations among commissioners have now given way to a denial of the contents of their own letter of complaint to the President against their chair, Mr Matemu, against whom a removal petition has been filed before the National Assembly.

In several quarters, the EACC is not seen as possessing sufficient credibility to lead investigations on corruption, and currently has the image and shape of a tool of special interests, rather than an independent constitutional commission.

There are also procedural concerns, again pointed out in the ODM statement. As an independent commission, the ordinary procedure at the EACC when dealing with cases of corruption is to channel investigative outcomes to the Director of Public Prosecutions who decides whether or not to commence prosecutions.

Finally, the manner in which the President introduced the directive requiring resignations from office has been likened to the messy handling of judicial corruption by former Chief Justice Evan Gicheru.

When Narc came to power in 2003, the Chief Justice, rather like the President has done to the EACC, commissioned Justice Aaron Ringera to compile a list of corrupt judges for removal from the Judiciary.

When the Ringera report was handed over to the CJ, and without disclosing the names of the judges in the list, he demanded that these must resign, claiming that there was no need to identify them since they knew themselves.

This procedure was criticised as falling short of the requirements of natural justice since persons were not required to resign without being told the reasons or being given an opportunity to defend themselves.