Anti-graft crusaders targeted to limit effectiveness

Just as the war on corruption seemed to warm up, it has just as quickly fizzled out. The real war seems to be the fight that the Ethics and Anti-corruption Commission commissioners have found themselves in.

Two commissioners resigned. Media reports over the circumstances surrounding the resignation of one of the commissioners are puzzling. What is just as puzzling is the silence on very serious allegations of intimidation of an independent constitutional officer.

The remaining two commissioners have been suspended on the recommendation of Parliament and a Tribunal formed to investigate them. The first victims of the war against corruption are the anti-corruption commissioners. Though it is now claimed we have waged a fresh and rejuvenated war on corruption, no one seems keen to protect the Generals.

The Commission for the Implementation of the Commission has given legal advice to the public stating that in the absence of the commissioners, the investigations by EACC should come to a stop.

The Director of Public Prosecution has taken a contrary view. His legal advice is that EACC doesn’t need the commissioners and the secretary to the commission and other staff can continue with investigations and forward any files to the DPP that merit prosecution.

As this matter unfolds, the question that should linger in the mind of the public in the coming months was whether this renewed war on corruption was a genuine effort or whether it was a disguised war against anti-corruption.

The President in his State of the Nation address made public a report from the EACC. It was said this was a confidential report presented to him by the Secretary to the commission. If this is true, the Secretary to the commission misled and misadvised the President on the Constitution and the law. The President could only act on the report if it was issued with the knowledge and express authority of the Commissioners.

The EACC is anchored in the Constitution. It is the guardian of Chapter 6 of the Constitution that deals with leadership and integrity. Chapter 15 of the Constitution gives the EACC independence of action and decision making. The Commissioners are not answerable or subordinate to the President or the DPP.

Under the law, the commissioners are the EACC. Section 4 of the Ethics and Anti-Corruption Commission Act states as follows: “the Commission shall consist of the Chairperson and two other members appointed in accordance with the provisions of the Constitution and this Act”.

Every other person who works at the EACC, including the Secretary to the commission, is an agent and is answerable to the commission.

The Secretary was hired by the commission under Article 250 (12) of the Constitution. The functions of the Secretary are laid out under Section 16 of the Ethics and Anti-Corruption Act. He has absolutely no power to act on his own. The other staff are hired by the commission and Article 252 (1) (d) of the Constitution. If the report presented by the President to Parliament was a report of a secretary, it is certainly not the report of the EACC. The Secretary and the President’s advisers misled him to call for the resignation of the persons named in such a report.

Once Parliament recommended to the President that a tribunal be formed to investigate the commissioners, and the commissioners were suspended, they also sent the EACC into suspension.

Without commissioners, the Secretary and other staff of the EACC may as well join members of the public in following the Tribunal investigating their employers.

Should the Secretary to the commission and the DPP insist on continued investigations and prosecutions against the legal advice of the CIC, and the courts nullify the entire process, no one should blame the Judiciary for yet another failed anti-corruption crusade.