Legal hurdles stand in way of lifestyle audit - Daily Nation

Legal hurdles stand in way of lifestyle audit

Sunday July 1 2018

Elgeyo Marakwet Senator Kipchumba Murkomen

Elgeyo Marakwet Senator Kipchumba Murkomen, his Nyeri counterpart Ephraim Maina and Kikuyu MP Kimani Ichung’wa chat during a fundraiser at Muruguru Catholic Church in Nyeri two weeks ago. Mr Murkomen has questioned the legal basis for the lifestyle audit declared by President Uhuru Kenyatta last month. PHOTO | NICHOLAS KOMU | NATION MEDIA GROUP 

By OSCAR OBONYO
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Senate Majority Leader Kipchumba Murkomen is a smart man. He is well aware that the proverbial village well has been terribly dirtied and is now poking fun at President Uhuru Kenyatta’s belated efforts to clean up the water stream, that is Kenya’s lifeline.

“What is lifestyle audit? As said by who? Under what legal framework? To be approved by who? To be done by who?” he posed last week, essentially poking holes at President Kenyatta’s public pronouncement while on a working tour of Mombasa, that his government would embark on a lifestyle audit of state officers and public servants.

And one may be tempted to add to the chain of Murkomen’s questions — who is the sentinel or custodian of the village well and who dirtied the waters under his or her watch? Human rights lawyer, Haron Ndubi, believes the Executive is trying to clean up a mess it deliberately created in the first place.

Ndubi opines that if the relevant institutions were allowed by the state to operate freely, then theft of public resources and abuse of office would be dealt a blow.

LEGAL BASIS

Ideally, the lifestyle audit as envisioned by President Kenyatta is a political statement without strict legal basis. And Ndubi argues it is a lazy populist approach to the public excitement about corruption.

“Public officers are, under the Public Officer Ethics Act, expected to make wealth declarations. But have you ever heard anyone query one single declaration?

This so-called audit is a phoney political ploy meant to lull Kenyans into another period of slumber,” observes Ndubi, the lawyer, who unsuccessfully challenged the President’s election at the Supreme Court during last October’s re-run.

When the President announced on June 15, during a tour of Mombasa, that all public officers would undergo a lifestyle audit, Deputy President William Ruto said he was ready to submit himself to the audit. He gave the assurance in the same city during his address to secondary school head teachers who had gathered for their annual conference.

But if his follow-up statement and Murkomen’s related questions are anything to go by, then the DP only gave in as a gimmick to demonstrate a public show of unity with his boss. Ruto said the audit ought not to be viewed as targeted at him even as his key ally disclosed that the DP was actually ambushed by the President’s pronouncement.

FIGHT AGAINST CORRUPTION

The import of Murkomen’s assertion is clear: The President and his deputy are not on the same wavelength with regards to lifestyle audit. In fact the senator claims Mr Kenyatta’s directive has made matters worse in the fight against corruption.

Terming Murkomen’s sentiments as misleading and signs “of a man scared of something”, Executive Director of the International Center for Policy and Conflict (ICPC) Ndung’u Wainaina, accuses the Elgeiyo Marakwet senator of “cleverly playing politics” on a serious matter of public interest.

“If the DP has nothing to hide, why does he —or his backers — object to the audit? There has to be a proportionate balance between your wealth and income. If there is discrepancy you have to explain,” says Mr Wainaina.

A couple of days after the President’s directive, the social media was awash with posts — some hilarious — in support of the Head of State. But the most exciting one was by popular blogger Cyprian Nyakundi who kicked off campaign on Twitter under the hashtag #WeKnowYourSalary.

PROPERTY AND ASSETS

The account remains active as Kenyans continue to audit top government officials by posting images of property and assets owned by these officials vis-a-vis their perceived salaries and allowances.

Mr Wainaina maintains the audit is backed by law and quotes Article 10 of the Constitution on national values and principles, which are specific on accountability and transparency. Further, there is also the Public Officer Ethics Act, Anti-Corruption and Economic Crimes Act, not to mention the Leadership and Integrity Act.

“Recall the Nancy Baraza (former Deputy Chief Justice) tribunal and the threshold it set for any holder of public office. We cannot have a discriminatory and selective application of the Constitution,” charges Mr Wainaina.

Kenyans entrenched Chapter Six and principles of Public Service (Article 232) in the Constitution to govern integrity and ethics of public officials. However the Supreme Court — the highest court of the land —  has been rather slow in giving purposeful meaning to Chapter Six.

While the move by the President is backed by the law, there exist no solid structures to execute the same to date. Besides, politicians, who abhor accountability and public scrutiny, will turn everything into a political circus to defeat its noble objective. And this is precisely the legal lacuna and public space that Murkomen and other pro Ruto politicians are bound to exploit.

PROPERTY OWNERSHIP

Already Nandi Senator Samson Cherargei and Kapseret MP Oscar Sudi have publicly claimed the lifestyle audit is geared at frustrating Mr Ruto’s 2022 presidential bid.

And in a veiled attack at the President, the latter even suggested the lifestyle audit should be backdated to 1963, when Mr Kenyatta’s father, Jomo, served as the country’s first Head of State.

While lawyers polled by Sunday Nation are in agreement that the law is fairly adequate on lifestyle audits, they say the laws should be amended so that there is disclosure of the human persons behind company names: “The tragedy is that you will find a company is owned by other companies, which are also owned by another,” Mr Ndubi says. This makes it difficult to trace property ownership.

A political ally of the DP from western Kenya, who declined to be named because “this simmering war between Uhuru and Ruto will have serious casualties”, says corruption has reached frightening levels in the country, the MP fears “the economy will continue to suffer serious haemorrhage if unchecked”.

He wants the DP to subject himself to the audit and if there are any legal bottlenecks in the exercise, “they must be pulled out to help us wage this war effectively”.