When Kenyans promulgated the Constitution in August 2010, one of the outstanding features of the new supreme law was that ordinary Kenyans would have a say in determining the suitability of serving and newly appointed State officers.
But a look at Kenya’s experience with vetting reveals unfulfilled constitutional promises and an exercise that has often been abused or turned into an anti-climax.
This could put the now contested move by President Uhuru Kenyatta to have all heads of procurement and accounting units in ministries, departments, agencies and State corporations subjected to screening, into serious questions.
“Vetting is a good idea but how we implement it is the problem. Kenyans have found ingenious ways of bending everything that is good and is provided for in the Constitution. If it is renewing offices, you remove people and put worse ones sometimes. We bend everything to suit our whims,” former Justice minister Martha Karua observed.
Exercises similar to the one heads of procurement and accounting were about to be subjected to before the Employment and Labour Relations Court intervened, have either stalled or produced sub-standard outcomes.
For instance, when the board of the Ethics and Anti-Corruption Commission (EACC) in 2016 announced that it would vet staff of the secretariat, a plot was hatched and a lobby group, the Trusted Society of Human Rights Alliance, moved to court and succeeded in blocking the planned exercise, to the joy EACC staff.
Moreover, the plan was to cause upheavals within the commission that eventually led to the resignation of board chairman Philip Kinisu. To date, no one talks about it.
“You then wonder if these are the same people (EACC) who are supposed to carry out lifestyle audits on other public servants. Where should we begin?” asked Ms Karua.
A year before EACC board announced their plans, President Kenyatta had directed that staff of the Kenya Revenue Authority (KRA) undergo a lifestyle audit. What happened thereafter has never been revealed, but the exercise stalled. Apparently, staff who feared they could be victims of such an audit anonymously wrote to their seniors telling them to back off or else they would reveal embarrassing or incriminating secrets about them. The exercise stalled.
The vetting of police officers, a requirement of the law, was yet another circus. The International Centre for Transitional Justice (ICTJ), in a report of May 2017, found that police vetting had more or less stalled or become a money-minting exercise, with the National Police Service Commission (NPSC) creating hurdles for the public to robustly engage in the process by excluding the media and limiting the flow of information.
“This analysis finds that the (National Police Service) Commission is unable to rectify glaring weaknesses of the ongoing vetting process, despite the fact that these weaknesses have been raised to the Commission by civil society and human rights defenders over time. This has in turn contributed to apathy and loss of confidence in the process. Countrywide consultations with human rights defenders suggest that these weaknesses are so severe that the Commission will not achieve the objectives of the vetting,” ICTJ noted in the report.
Vetting that was being conducted by NPSC was to professionalise the police service by weeding out those found unsuitable either because they do not meet academic requirements or whose integrity is in question. Some senior officers were cleared despite a trail of eye-catching M-Pesa transactions from their juniors on a regular basis.
For a number of officers who were initially found unsuitable, they were able to get back to the service on appeal.
According Ndung’u Wainaina who heads the International Centre for Policy and Conflict (ICPC), other than corruption and lack of political will, the biggest problem that has beset vetting of public officers is lack of any document spelling out the criteria for vetting.
“What we call vetting is often an arbitrary exercise and depends on the people who are doing the vetting and their understanding of the exercise,” he said.
Mr Wainaina also wondered: “Regarding the accounting and procurement officers, are we going to base their vetting on their lifestyle audit? What sort of information will those doing the vetting be looking for? And what legal standards will be applied?”
Before the last General Election, a multi-agency task force that included EACC, KRA and the Directorate of Criminal Investigations (DCI) produced a list of more than 100 people who were running for various political offices but who were found to have failed the integrity test.
Despite the list being shared with the Independent Electoral and Boundaries Commission (IEBC), none of them was barred from contesting.
At the Judiciary, despite the vetting of judges and magistrates who were in service before the 2010 Constitution, cases of corruption are still rampant.
And as the procurement officers and accountants rushed to submit the information asked of them before the Friday deadline, despite a court order suspending their suspension, lawyers are warning that the idea, though good, could be mired in legal problems.
“This thing of people being ordered to step aside is like being punished without being told your offence and being given no opportunity to be heard. There are legal obstacles which the government needs to be very careful about. May be they should have negotiated with the officers so that they voluntarily step aside and subject themselves to vetting,” lawyer Nzamba Kitonga, who chaired the Committee of Experts (CoE) that came up with the 2010 Constitution, said.
It is a view shared by Mr Wainaina, who says the source of the order to have the affected officers step aside is also questionable.
“Other than cabinet secretaries and principal secretaries, who serve at the pleasure of the President, any other person serving in the civil service is an employee of the Public Service Commission (PSC).
“The commission is the only one that can subject civil servants to disciplinary process or assess the integrity and suitability of a civil servant. Also, nobody has filed any complaint against any particular officer among those who have been asked to step aside,” said Mr Wainaina.
The edict to have procurement officers and accountants step aside came from President Kenyatta in his Madaraka Day speech in Meru on June 1. Thereafter, the head of public service Joseph Kinyua issued a circular directing the concerned officers to step aside and provide certain information, some which legally border on self-incrimination, by the end of Friday last week. The order was, however, suspended by the Employment and Labour Relations Court.