Parliamentary vetting of public officials in Kenya: opinion split on effectivity

NAIROBI, KENYA: The vetting of senior public officials as required by the Constitution continues to draw mixed reactions, with some observers questioning the effectiveness of this policy.

The biggest threat being cited is the danger posed by the perception of ‘tyranny of numbers’ in the National Assembly, through which a bulk of the executive appointments must pass.

Some nominees reportedly started working ahead of parliamentary approval because they believed they would automatically qualify at the vetting stage, where almost 99 per cent of all executive nominees have sailed through the parliamentary sieve.

In contrast, the biggest plus being cited is the increased consciousness of scrutiny among the public job applicants, which may have seen some unsuitable candidates lose interest.

REVOLUTIONARY ASPECTS

The concept is cited among the most revolutionary aspects of the Constitution. Bobby Mkangi, a former member of the Committee of Experts that drafted the Constitution, says: “I remember some time last year when African experts convened in Tanzania gave views on the draft constitution of that country. One of the experts from Senegal said the biggest take home for him, and for the rest of Africa indeed, was the idea of vetting senior public officials the Kenyan way.”

According to Mkangi, the idea of vetting widens democracy by allowing the public to participate in the appointment of those who will serve them. It also mitigates corruption and abuse of office.

For a four-year-old idea, the lawyer points out that it has been a learning process for all involved. He says the Public Appointments (Parliamentary Approval) Act No. 33 of 2011 is a good starting point.

Although the Act provides for only three issues of consideration during vetting, Mkangi says he has noticed that some sessions are not properly structured or limited to the three matters; the procedure used to arrive at the nominee, constitutional or statutory requirements relating to the office in question, and suitability of the nominee for the appointment.

“Parliamentary vetting ought not to appear like a fresh interview of the candidates. The committees ought to restrain themselves to issues like the public record of applicants, their moral standing as well as their ideological perspectives.”

Mkangi says the biggest threat to the efficacy of vetting has been politicisation of the process. The tyranny of numbers theory, he says, can easily make a mockery of the whole idea.

“In the ideal situation, when it comes to public appointments, vetting committees should adopt a bipartisan approach. Anything else undermines the process and leads to undesired results.”

He says Kenyan’s failure to break away from the culture of political patronage has further complicated matters, as regions, parties and ethnic groups strive to get a stake for their people.

Former assistant minister Ndiritu Muriithi agrees: “As a concept, the idea of vetting is a good one. Is it always carried our well? Unfortunately, no, particularly where the body used is just a rubber stamp.”

Muriithi says the idea is sound if the vetting body is not subservient to anyone in thought and practice: “The way to improve vetting in Kenya is to improve the strength and independence of the vetting bodies.”

REJECT CANDIDATES

Nyeri County Women’s Representative Priscilla Nyokabi denies that the tyranny of numbers waters down or threatens vetting. A member of the legal affairs committee, Nyokabi says she has never witnessed this tyranny at work.

“In our committee, we have done our work quite well, I believe. We have not denied anyone a job because we have not seen any reason to. Trust me, if we find any reason to reject candidates in future, we will do so,” she says.

According to Nyokabi, part of the reason why Parliament has not rejected anyone is because the nominating authorities have done a good job. “There are prospective candidates who have backed off these jobs in fear. There is a self-vetting element involved,” she says.

She says the only problems she has noticed are the failure to factor age and gender balance among the nominating authorities: “Of the recent 25 ambassadorial appointments that went through Parliament, only four were women. Parliament must enforce the gender rule more strictly.”

CIVIC EDUCATION

Lawyer Alfred Ndambiri says the vetting experience has been a ‘50-50 affair’ in terms of losses and gains. He says although about 100 judges have gone through vetting, the feeling  is that the processes were not “genuinely participatory”.

He stresses the importance of civic education on the importance of the appointments, and how to genuinely participate in the vetting.

“Ideally the legal framework guiding vetting should be changing every so often to include the lessons learned. The four years we have employed this principle have surely borne us some lessons that need to be modelled into the existing law,” Ndambiri says.

DESIRED OBJECTIVE

He cites corruption as one of the threats to vetting and says the Kenyan society has not cleansed itself of the idea that money can clear one’s way.

Ndambiri notes that other issues like whether the President must appoint all nominee judges given to him by the Judicial Service Commission need to be sorted out. The Law Society of Kenya has gone to court over the matter.

Prof Ben Sihanya of the University of Nairobi is, however, convinced that vetting has failed to achieve its desired objective.

“Although it was well intentioned, it has failed to work. All of President Uhuru Kenyatta’s nominees have been approved, including those with obvious and irremovable stains to their names,” Sihanya adds.

Besides Parliament, all other vetting forums — security and judiciary — are “simply playing games”, according to Sihanya. He says the idea must be retained but improved.