High Court temporarily stops planned vetting of EACC staff

The High Court has temporarily stopped planned vetting of Ethics and Anti-Corruption Commission employees pending the determination of an urgent case contesting the move.

Justice Joseph Onguto issued the interim orders Wednesday after Trusted Society of Human Rights Alliances moved to court last year contesting the move by Chairman of EACC, Philip Kinisu who publicly announced on February 20th that all staff of EACC will be vetted afresh.

Justice Onguto halted the process on employees who were in employment on or before September 2, 2015.

The lobby claimed unless the court acts with urgency to intervene on issues of the petition challenging constitutionality of their amendment act authorizing the intended re-vetting, it will be rendered nugatory and of no practical value.

The applicants said they filed a case challenging the constitutionality of Section 6 of Ethics and Anti-Corruption Commission (Amendment) Act 2015 by filing a petition on November 23 but have never received a response.

The amendment act they say is unlawful as it was enacted after EACC employees have vested and accrued rights under their contract as the provision seeks to alter their contractual rights.

The group claimed that the provision was discriminatory of EACC employees in contravention of Article 27 of the constitution.

"The implementation of provisions of section 6 of the amendment Act to vet the employees of the EACC who have already been vetted, contravenes the existing rights and obligations under their respective contracts of employment," said their lawyer Kioko Kilukumi.

Kilukumi said re-vetting EACC employees and any subsequent termination based on the re-vetting process is manifest erosion of the rights of employees who deserve to be treated with dignity.

The lobby group claimed that the requirement of re-vetting of employees of the EACC amounts to an unfair labor practice in contravention of article 41(1) of the Constitution considering that EACC employees were vetted.

The case will be mentioned on April 19 for further directions.

EACC Chief Executive Halakhe Waqo and the Deputy Chief Executive (Operations) Mr Michael Mubea, top the list of the officials to be vetted.

Kinisu said this will not be done with a view to sacking individuals, but to ensure they have the right people in place for the work.

Waqo and Mubea survived the sack after President Uhuru Kenyatta signed into law the amended Ethics and Anti-Corruption Commission Bill.

Kenyatta signed into law the Ethics and Anti-Corruption Commission (Amendment) Bill 2015, which had been returned to Parliament for amendments after he objected to clauses that would have seen the two sacked.

Clause six of the Act had proposed the immediate removal of Mr Waqo and Mr Mubea and their retention in an acting capacity pending appointment of new members of the commission upon commencement of the Bill.

The President recommended a more general provision covering all employees in office at the commencement of the Act, and for the vetting of such employees on the basis of criteria set by the commission within a period of one year after commencement.

The National Assembly accepted the President's recommendation and the provision was in order for assent.

Other amendments saw the number of commissioners increased from three to five, they will remain in office for a single term of six years and are not eligible for re-appointment.

Under the law, the commissioners will also work part-time, a move meant to give the chief executive full authority over the commission's operations.

70 MPs voted in support of amendments introduced by Kiminini MP Chris Wamalwa while 39 opposed it, with one MP abstaining.