Q & A with EACC boss Twalib Mbarak

1. it is now more than four years since Imperial Bank went under with tens of billions of depositors’ money yet none of the directors or managers have been arrested and charged despite promises that they, as well as Central Bank officials who allowed this to happen, would be prosecuted. What is happening concerning this case? Caleb Opuka

The matter involved banking fraud and was rightly taken up by the Banking Fraud Investigation Unit under the Central Bank of Kenya.

I am aware there are suspects who have been charged in court with various criminal offences.

2. When Kenyans apply for jobs, they are required to obtain clearance certificates from government agencies including EACC. The applicants have to pay to get a lawyer to sign the forms for them. What are your plans to ensure that at least for EACC it is easy and free to obtain? Nathan Muthamia, Chuka

The EACC does not charge any fees for integrity clearance. Persons seeking clearance from EACC are required to fill and submit the Self-Declaration Form prescribed in the First Schedule to the Leadership and Integrity Act, 2012.

The last part of this Form prescribes a mandatory oath/affirmation to be taken by the applicant.

We advise that applicants have their forms witnessed by magistrates in courts, which is cheaper.

The EACC has made proposals to have the law amended following a meeting with the Senate departmental committee on Labour and Social Welfare so that the oath is not mandatory.

In addition, we are engaging with the Law Society of Kenya regarding the legal charge to make it more affordable.

The EACC is also automating the self-declaration to enable online application, which will make the process easy and faster.

3. In the recent past, ordinary citizens have been treated to lots of speculation especially in the fight against corruption and the BBI politics. There have been claims that governors who are pro-BBI have been spared scrutiny or arrests. What is the true position on this? Can Kenyans continue to expect a process that is insulated against politics or other considerations? Komen Moris, Eldoret

As a constitutional commission, EACC is an independent body that reports only to the people of Kenya through Parliament.

The law provides that in the performance of its functions, EACC is not subject to the direction or control of any other person or authority.

Investigations are, therefore, based on information received or detection of malpractices. We strive to ensure our processes are professional, impartial and in accordance with the law.

The evidence and findings of our investigations are further subjected to an independent review by the Office of the Director of Public Prosecutions.

4. Past survey findings have indicated a worrying trend where a majority of youth in the country have indicated that they are likely to engage in corruption if such an opportunity presented itself. This disturbing reality requires EACC to undertake extensive education on this vice and its implications on our country, especially at lower levels of our education system. What measures have you put in place for this? Komen Moris, Eldoret

The EACC has diverse integrity programmes targeting the youth, which are primarily implemented through formal learning institutions.

For instance, EACC has collaborated with the Kenya Institute of Curriculum Development (KICD) to ensure that values, ethics, integrity and character education are mainstreamed in the curriculum.

The EACC is also a member of the National Curriculum Reform Steering Committee working towards the implementation of the Competency Based Curriculum (CBC).

Similarly, the Ministry of Education has instructed all schools in Kenya (through two ministerial circulars in 2010 and 2017) to establish integrity clubs in collaboration with EACC.

We have also developed school-based materials on values, character formation, integrity and patriotism. These materials are foundational resources for the rolling out of CBC.

5. Why did the EACC recommend the cancellation of all the Kenya Prisons arms tenders yet the department is in dire need of modern equipment for its officers across the country? Why are the culprits who were implicated in the attempted sleaze still out there despite the overwhelming evidence against them? Andrew Maranga Ratemo, Kisii

The EACC received credible information of irregular award of tenders at the State Department of Correctional Services worth Sh4.8 billion.

As a precautionary measure and to avert loss of public resources, EACC disrupted the corruption network before payment was effected.

Thereafter, investigations were conducted and a report with findings and recommendations submitted to Director Public Prosecutions as required by law.

Disruption of corruption networks is a preventive strategy to safeguard public resources.

It is more effective than the alternative of tracing and recovering what has been stolen through the lengthy and cumbersome court process.

6. First and foremost, I would like to thank your entire office for fighting corruption without favour. Last year your officers arrested traffic police officers in Kisumu accusing them of soliciting bribes from motorists — one police officer was shot. Why should your officers come all the way from Nairobi to arrest suspects in Kisumu yet there is an EACC office in Kisumu? What does that say of the competence of your officers in the field offices? Edward B. Wekesa, Kisumu

The EACC is one agency regardless of where offices are situated. Our officers undertake the same training and possess similar skills and capabilities.

We coordinate our operations and select teams to undertake operations in any part of the country.

On the particular operation in Kisumu, it was undertaken by officers from the Western Regional Office in Kisumu.

7. In the case of money hidden in offshore accounts, how does your agency and the Assets Recovery Authority go about repatriating such money back to the country? How much has EACC repatriated since 2010? Dan Murugu, Nakuru

The return of stolen assets is recognised under the United Nations Convention on Corruption as a legal principal under international law.

State parties, of which Kenya is a member, are required to facilitate the return of stolen assets.

In addition, Kenya has signed bilateral and multilateral agreements with friendly nations to provide mechanisms for seizure, confiscation, recovery and repatriation of assets.

Through cooperation between Kenya and the United Kingdom, assets worth approximately Sh43 million were repatriated to Kenya and used to purchase ambulances to support the health referral system.

There are other ongoing efforts to repatriate more assets. Locally we are also making good progress in assets recovery.

For instance, in the past five years EACC recovered assets worth approximately Sh13.2 billion.

8. Parliament last year unanimously tasked your commission to investigate the proposed merger of Telkom Kenya and Airtel Kenya and find out whether the government got value for money and was not short-changed in the initial privatisation of the former about 10 years ago. In the investigations, did you make any finding on the fraudulent Telkom Kenya Mzalendo Pay Phones scam? What happens to poor Kenyans who lost their money in that scam? Dan Murugu, Nakuru

The EACC is seized of the matter and is investigating it. It is therefore detrimental to discuss this active inquiry. The matter will be subjected to our investigation processes to its finality.

9. At the time of his exit as the Auditor-General last year, Edward Ouko did not have a good report for [any of] our counties in terms of how our taxes were used. However, EACC appears to be pursuing only a handful of cases. What is the commission doing to bring all the governors, and the county leadership to account for these misdeeds? Mmasi Evans, Nairobi

We work closely with the Office of the Auditor-General and other stakeholders such as the various committees of Parliament.

The recommendations of these institutions aid our investigations. There are high-profile cases that have been concluded and senior county officials charged in court.

The EACC is also finalising investigations on a number of county governors and senior county officials over allegations of procurement irregularities, abuse of office and conflict of interest, among others.

10. It has been alleged that a number of our elected politicians have fake academic papers or had known integrity concerns about them before they were elected. In light of the provisions of Chapter 6 of the Constitution, how were they cleared by more than four bodies, EACC included? Are some of your officers complicit in this? Benard Lipesa Chetambe, Nairobi

The law vests the responsibility to determine the qualifications of a person aspiring to vie for public positions in the Independent Electoral and Boundaries Commission (IEBC).

The EACC, however, collaborates with IEBC through submission to IEBC of recommendations relating to candidates with unresolved integrity issues.

It is important to note that after elections, the persons so elected become State Officers subject to the integrity standards under Chapter Six of the Constitution and related laws.

The EACC encourages Kenyans to report suspected breaches of the law and action will be taken.

11. Over time, Kenyans have been treated to a back-and-forth between the investigation/prosecution side and the Judiciary. The investigation/prosecution side has blamed the Judiciary of being the weak link in the graft fight. The Judiciary has maintained that the prosecution is often unprepared or presents weak evidence. What is your position? Paul Gesimba, Nairobi

The criminal justice system is a chain involving constitutionally established independent agencies with clear responsibilities.

The entire system is therefore as strong as its weakest link. EACC is mandated to investigate corruption and economic crimes and submit its findings to the Director of Public Prosecutions (DPP).

If the DPP is satisfied that the evidence is sufficient, he proceeds to prosecute the case.

The adjudicator evaluates the evidence from the prosecution and the suspects and determines the guilt or otherwise beyond reasonable doubt.

The concern of Kenyans is that cases appear to take long through the justice system.

There are ongoing engagements under the National Council of Administration of Justice to unclog bottlenecks and unnecessary delays.

12. As you work towards making all the corrupt individuals account for their sins, are there some who are untouchable? Mahmoud Mohamed, Karen, Nairobi

The EACC does not consider the social, political or economic profile of a suspect.

This position is reflected in the range of cases that the commission has investigated and forwarded to the DPP. The EACC is only guided by law and evidence.

We take pride in the milestones made so far, such as the recovery of corruptly acquired public property worth approximately Sh9.5 billion in 2019.