EACC can still fight graft, but it must stick to law to avoid judicial challenge

What you need to know:

  • Regrettably, Mr Ng’eno fundamentally misrepresents CIC’s position, then proceeds to apply the law to that misstated position in a shallow manner unbefitting of his esteemed office.
  • At no point in our letter does CIC seek to stop the Director of Public Prosecutions (DPP) from carrying out his constitutional duty.
  • It is shocking that an officer of Mr Ng’eno’s calibre can throw such uninformed and unjustifiable accusations against another public officer.
    Mr Ng’eno got it hopelessly wrong on the law and perhaps revealed his real intent by his ill-informed attack on CIC.

In his article carried in the Daily Nation of Monday, May 18, presidential speech writer Eric Ng’eno states: “It would be encouraging to know that in the war against corruption, we are all on the same side.”

As the Commission for the Implementation of the Constitution (CIC), we could not agree more, with the rider that it must be the side of the Constitution.

Regrettably, Mr Ng’eno fundamentally misrepresents CIC’s position, then proceeds to apply the law to that misstated position in a shallow manner unbefitting of his esteemed office. The good speechwriter concludes his article by casting aspersions on the motivation of CIC in taking the position it has on this matter.

For the record, CIC has not published any advisory opinion on this matter but only addressed its opinion to the Attorney-General (AG) to bring to his attention critical constitutional questions that required consideration.

At no point in our letter does CIC seek to stop the Director of Public Prosecutions (DPP) from carrying out his constitutional duty. It is, therefore, ludicrous for Mr Ng’eno to assert that “CIC wants the war on corruption halted until the commissioners are reinstated or new ones installed.”

In our letter to the AG, we stated : “We note that both in terms of Article 250(1) of the Constitution and Section 4 of the EACC Act, the commission comprises the commissioners who are supported by a secretariat headed by the secretary.”

We went further to state that, “We believe that whereas the technical work of the commission can continue to be carried out by the secretariat, no formal decision of the commission, including inter alia, the transmission of recommendations of the commission to the DPP under Section 11(1)(d) of the EACC Act, can be legally effected by the commission in the absence of the commissioners.”

We concluded that particular letter by advising that no actions should be “taken by the secretariat of the commission purporting to act as the commission as the same will be subject to judicial challenge and compromise the ongoing fight against graft.”

Article 250(1) and the EACC Act define a commission as “the commissioners”. The secretary/chief executive officer of the commission is, in terms of Article 250(12) of the Constitution, appointed and removed by “the commission”. Section 16(6) provides that “The secretary shall, in the performance of the functions and duties of office, be responsible to the commission”.

It is CIC’s stated position that the secretariat can and should proceed at all times to carry out its technical work, but where a formal decision is required to be conveyed, such as, for example, a recommendation to the DPP, this can only be done by the commission as defined in Article 250(1) of the Constitution. It is worth noting that under Section 9 of the Second Schedule to the EACC Act “all …decisions of the commission shall be signified under the hand of the chairperson and the secretary.”

CIC has advised that the DPP constitutionally and statutorily has authority under Articles 157(4) and (6) to direct, not just the EACC, but any investigative agency to investigate any criminal conduct (including corruption) and to institute any criminal proceedings against any person. In CIC’s view, this option should be utilised pending appointment of new commissioners.

Mr Ng’eno knows that CIC has always been guided by fidelity to the law, yet spends almost half of his article in cheap imputation of ill motive against CIC and casting aspersions against the commission.

For the public record, when the commission has considered its position on this matter, the vice-chairperson, Dr Elizabeth Muli, has always recused herself on the basis that her husband, Mr Nduva Muli, is one of the public officials who stepped aside following the President’s directive.

It is shocking that an officer of Mr Ng’eno’s calibre can throw such uninformed and unjustifiable accusations against another public officer.
Mr Ng’eno got it hopelessly wrong on the law and perhaps revealed his real intent by his ill-informed attack on CIC. It should worry, but maybe not surprise Kenyans, if this is the calibre of advisers available to the national leadership.

Mr Nyachae is the chairman of the Commission for the Implementation of the Constitution. [email protected]