The Building Bridges Initiative (BBI) report has made far-reaching recommendations regarding the mandate of the Ethics and Anti-Corruption Commission (EACC).
If adopted as they are, however, the proposals could have serious implications on the independence of the EACC as a constitutional body and the anti-graft war.
The proposal wants EACC’s mandate reduced to a full-time focus on ethics. Then known as the Ethics and Integrity Commission, it would operate under the Office of the President.
Its primary roles would include to provide ethics and public leadership training, advise the President on ethical standards, monitor and report on the standards of conduct for public officers and undertake annual integrity, ethics and efficiency surveys on public institutions.
Further, the role of investigating corruption would be taken away from the EACC.
And to strengthen corruption investigations and prosecutions, the report proposes, ‘continuously strengthen the Office of the Director of Public Prosecutions and Directorate of Criminal Investigations’.
LAW ON INTEGRITY
The above proposals are problematic for several reasons. The starting point is Article 79 of the Constitution, which mandates Parliament to enact legislation to establish an ethics and anti-corruption commission to ensure ‘compliance with and enforcement of’ Chapter Six of the Constitution on leadership and integrity.
But it is impossible for an agency to do that without an investigative role. Article 73(2)(b) stipulates that decision-making should not be influenced by ‘nepotism, favouritism, other improper motives or corrupt practices’.
And Article 75 obligates state officers to avoid conflict between personal interests and official duties and compromising public interest for personal interest.
These provisions are textbook definitions of corruption and, arguably, one cannot ensure their compliance and enforcement without the mandate to investigate — which the BBI report proposes to take away from the EACC.
The re-mandated EACC would then be placed under the Office of the President.
The EACC is a constitutional commission under Chapter 15 of the Constitution, which, at Article 249(2), clarifies that commissions are only subject to the Constitution and the law and cannot be directed or controlled by any person or authority.
Safeguarding the independence of the EACC and other commissions was for a good reason — to ensure that they hold all, including the Presidency, to account. Placing it under the OP would therefore compromise this status.
Globally, according to the Organisation for Economic Cooperation and Development (OECD), anti-corruption authorities adopt one of three models.
One, a multipurpose agency involved in policy, analysis and technical assistance in prevention, public outreach and information, monitoring, investigation but a separate prosecution mandate.
Two, the law enforcement agency model combining the three functions of detection, investigation and prosecution.
Three, preventive, policy development and co-ordination opf institutions that major in anti-corruption training for public officials, advising on government ethics, monitoring anti-corruption strategies and action plans.
It is apparent from the BBI report that the proposal seeks to move the EACC from option one to three and, essentially, give the police the exclusive mandate to investigate corruption.
The country has travelled down this road before. In 1993, we had the Police Anti-Corruption Squad, which was disbanded two years later.
Then came the Anti-Corruption Police Unit after the Kenya Anti-Corruption Authority was disbanded in 2000.
The BBI report proposes that we go back to the past, with unanswered questions on independence of the Directorate of Criminal Investigations (DCI) from the Executive and the attendant risk of politicising and weaponising the fight against corruption.
A look at the report suggests that the DCI and the Office of the Director of Public Prosecution (ODPP) had a ‘handshake’ of their own.
It is clear on the synergy between the two institutions, even as the EACC is edged to the periphery of the anti-corruption war.
The DCI and/or its proponents seemingly maximised on the opportunity presented by the BBI to attempt to finally settle the turf war with the EACC regarding investigation of corruption.
That this role is being wrestled from an independent constitutional commission and handed exclusively to the police — who have had a lacklustre performance in this field — should concern everyone keen on a depoliticised, transparent, efficient and effective war on corruption.
Mr Kahuthia is an advocate of the High Court of Kenya. [email protected]