IEBC deal has set a malevolent precedent

From left: Independent Electoral and Boundaries Commission Chief Executive Officer Ezra Chiloba, Chairman Issack Hassan and Vice-Chairperson Lilian Mahiri-Zaja before a joint parliamentary select committee on the body at Parliament Buildings on August 2, 2016. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

What you need to know:

  • IEBC commissioners have invented a new political settlement for crimes involving misappropriation and mismanagement of public resources.
  • They stand accused of stealing public funds in procuring materials for the last General Election.
  • The opposition has accused IEBC commissioners of mismanaging elections in order to wilfully rig the elections.
  • Unless an Act of Parliament is passed excluding these commissioners from prosecution for the crimes they are accused of, the public prosecutor or even a private individual can take up the matter and prosecute them in court.

Not so long ago we were dazzled by a “step aside” craze whenever public officers were implicated in impropriety. This involved having the officer stay at home and appointing an “acting” replacement while “investigations continue”. Meanwhile, the officer’s full pay would continue, ensuring that he suffers no discomfort “until investigations are concluded.”

Many “step-asiders” continued to earn salaries even after “investigations were concluded” and they were arraigned in court for offences relating to abuse or misuse of public resources. Nobody knows what happens to these officials after they are convicted or acquitted.

Commissioners of the Independent Electoral and Boundaries Commission have, in consultation with the political class, decided to change the pace of the game.

Instead of the now jaded “step-asiding”, they have invented a new political settlement for crimes involving misappropriation and mismanagement of public resources. They stand accused of having stolen public funds in procuring materials for the last General Election, and the opposition has even gone as far as accusing them of mismanaging the process in order to wilfully rig the elections.

These are serious allegations and, ordinarily, the commissioners would have to face a tribunal to remove them from office, and perhaps even submit them for processing through the criminal justice system.

However, thanks to the negotiated “political settlement”, these officers will now vacate office without actually leaving! This magical settlement ensures that they will be paid their full dues for the next 15 months, while not being required to do anything in return.

As a matter of fact, their positions will be advertised and filled while they continue earning their salaries and allowances up to “the end of their terms” in November next year. To further sweeten the deal, there is talk of some sort of “immunity” being offered, though it is unclear what immunity Parliament can confer on someone accused of criminal offences.

CONSTITUTIONAL HURDLES

Unless an Act of Parliament is passed specifically excluding these commissioners from prosecution for the crimes they are accused of, the public prosecutor or even a private individual can take up the matter and prosecute them in court.

Of course such an “immunity” Act of Parliament would have to navigate constitutional hurdles against discrimination and favouritism, but with the current political environment in this country, anything is possible.

We must frame these events as they really are, in order to avoid the future temptation to claim that we did not see it coming. The truth is that we are overthrowing the constitution and the system of law and order as envisaged under the 2010 constitution.

We are setting a malevolent precedent whereby a public officer will feel emboldened to misuse public resources safe in the knowledge that even when he is caught, there will be nothing to lose.

In fact, it appears that it is in his best interest to make sure that he is caught, because the benefits of being caught far outweigh any attendant risks. Instead of resigning and losing all his benefits, or even “step-asiding”, he can simply negotiate a “dignified send-off” that ensures that he gets his full benefits to the end of his contract.

High positions in the public service have now been established as the cushiest appointments in this country, not because of the perks of office, but due to the potential loot and get away with it.
When we were young we were taught to avoid breaking the law and social conventions even when nobody was watching. Today our children are learning that you can break any law or convention in the full glare of the public, and be rewarded for it. How, then, do we instil the values of hard work and elevation of public good above personal gain when all public examples are to the contrary?

A society on the verge of collapse tips over the precipice by desecrating the laws that protect people from their rulers.

Atwoli is associate professor of psychiatry and dean, School of Medicine, Moi University; [email protected]