Fight against graft requires genuine reform of anti-corruption commission

The much touted 60-day deadline to deal with 175 corruption cases, imposed by the President lapsed two weeks ago.

Of the 124 cases listed in the Ethics and Anti-Corruption Commission report presented to Parliament by the President in March 2015, investigations had been concluded in 56 cases.

The EACC requested 30 more days to conclude investigations in 68 pending cases. The proposed timeline may not be practical, considering EACC’s success rate in 60 days. While it is important to set deadlines, the EACC should not raise public expectations by over-promising and under-delivering.

Concluding investigations within 60 days was bound to be a hard tackle for EACC, considering its capacity and past record.

Kenyans are looking for accountability and will be satisfied with general progress irrespective of timelines. Still, questions abound. These include understanding why it was necessary for presidential intervention for files to move forward.

To answer this question, it is important to establish an independent audit to review the fate of corruption complaints handled by EACC to better understand the bottlenecks to successful corruption investigations and prosecutions.

Over the years, the work of EACC has not been scrutinised as it should. In order to determine the policy, legal and administrative adjustments needed for better results, Parliament ought to institute such an audit.

The 60-day deadline provided a window to initiate much-needed comprehensive policy, legislative, and institutional reforms to anchor the fight against corruption.

These should be prioritised. One of the key selling points of the Constitution of Kenya, 2010, is Chapter Six on leadership and integrity. The entrenchment of leadership, ethics, and integrity in the Constitution infused a high level of expectation among Kenyans regarding the quality of our leadership and level of accountability.

However, the spirit and letter of the Constitution are yet to impact our leadership. The Leadership and Integrity Act was severely watered down at Cabinet level in the last Parliament and is inadequate for the effective administration of Chapter Six.

The Ethics and Anti-Corruption Commission Act also requires amendment to better situate the fight against corruption on a more effective legal framework.

The President’s request to Cabinet and principal secretaries to “step aside” was perplexing as these are his appointees that he could have suspended.

“Stepping aside” is not provided for under any law in Kenya and the exact meaning and implications of it are not understood. The Anti-Corruption and Economic Crimes Act provides for suspension of a public officer charged with an economic crime until the officer is cleared.

Elected officials mentioned in the report disregarded the order to “step aside”, citing the lack of legal provisions for vacation of office.

There is, therefore, a need to ensure that provisions for vacation of office by both elected and appointed officials under investigation on corruption or other misconduct are firmly grounded in law.

The conflict between the commissioners and the secretariat, which has been observed in other independent commissions, predicates the need to review the structure of EACC and refine the functions of the commissioners and the secretariat. While the commissioners should provide a strong oversight function on the secretariat, they should not be involved in its day-to-day operations and should serve on a part-time basis.

Nonetheless, serious allegations were made against the commissioners and the leadership of the secretariat. Until these allegations are credibly investigated and discounted, they can only hurt the image of the EACC in the eyes of the public.

The President directed the Attorney-General and the Department of Justice, the National Treasury, and the EACC to develop a comprehensive national ethics, integrity and anti-corruption policy.

The AG had earlier in the year constituted a task force to propose appropriate changes to the law and structure of anti-corruption agencies and reforms for promoting ethics and integrity. It is hoped that these processes propel the reforms required to set Kenya on the right track in slaying the monster of corruption.

The writer is the executive director, Transparency International Kenya. @SamuelKimeu