Integrity law has failed to subdue politicians but who is to blame?


Inspector-General of Police Hilary Mutyambai, Director of Public Prosecutions Noordin Haji, Ethics and Anti-Corruption Commission CEO Twalib Mbarak and Commissioner General of Kenya Prisons Wycliffe Ogalo. [File, Standard]

On June 25 last year, Sirisia MP John Waluke earned a 67-year jail term for corruption, a landmark judgement in the fight against graft among the political class.

Three days earlier, Milimani Anti-corruption Magistrate Elizabeth Juma had found Waluke and Grace Wakhungu guilty of fraud in a Sh300 million maize scandal. Wakhungu was sentenced to 69 years in jail.

The conviction meant the Sirisia MP would automatically lose his seat. Further, the Constitution bars him from contesting elective office, given his sentence was longer than six months.

After years of seemingly punching in the air, anti-corruption agencies had netted a big fish and successfully prosecuted them. Waluke and Wakhungu’s convictions were hailed as a win for the Judiciary, historically blasted as compromised, and the Constitution, which had revealed its unforgiving claws.

Waluke spent four months in custody and secured bail when he appealed his conviction. Eleven months later, he is still an MP because his appeal is yet to be heard and determined.

This is a result of the provision that allows such suspects to exhaust appeal mechanisms before they are removed from office and denied the chance to seek office afresh. The list of such suspects is awash with governors and other State officers.

In a forum on fiscal management, audit and oversight held on Tuesday, heads of investigative agencies lamented that weak laws keep corrupt politicians in office.

Director of Public Prosecutions Noordin Haji and Ethics and Anti-Corruption Commission boss Twalib Mbarak said it is frustrating to see persons facing criminal charges in office and even campaigning for higher dockets.

Director of Public Prosecutions Noordin Haji. [Edward Kiplimo, Standard]

They blamed Parliament for failing to act efficiently against what was evident to them as an injustice.

“It rests on Parliament. If Parliament demands that such individuals step aside, then we would not see that problem,” said Haji.

But this is not the first time Haji is complaining about the matter and he is not the only one who has pointed it out.

Several players from the civil society have lamented over the apparent helplessness in dealing with suspected corrupt public officers.

For instance, the EACC, a body charged with clearing prospective public office holders, cannot bar a suspected criminal from contesting an elective seat.

When Kenyans passed the 2010 Constitution, they intended that their leaders would be persons of utmost integrity, and dedicated Chapter Six to leadership and integrity.

Articles in the chapter dictate the various responsibilities of leadership, with the overriding message underscoring the need for integrity and accountability among public officeholders.

Disciplinary procedure

Article 75(b) of the Constitution states that “a State officer shall behave, whether in public and official life, in private life, or association with other persons, in a manner that avoids compromising any public or official interest in favour of a personal interest.”

An officer who goes against this provision is subject to disciplinary procedure, which includes removal from office.

Article 80 requires that Parliament establishes mechanisms to facilitate implementation of Chapter Six as well as prescribing penalties for those who contravene their leadership and integrity obligations.

Section of Parliament Buildings, Nairobi. [File, Standard]

Such retributive measures include impeachment of officers for, among other things, a gross violation of the Constitution – which includes provisions on integrity.

Former Nairobi Governor Mike Sonko is a casualty of such measures, following his impeachment last year.

Over the years, Parliament has enacted laws aimed at complying with the constitutional requirement of upholding integrity.

Former Speaker Kenneth Marende headed Parliament when it passed the Leadership and Integrity Act in 2012, which was to give life to Chapter Six.

He terms implementation of the chapter “dismal”, saying the august House shoulders the blame for watering it down.

“The draft from the Attorney General on the Leadership and Integrity Act was stronger than that passed by Parliament,” says Marende, adding that the original Act prescribed punishments for specific violations.

Marende says MPs diluted it since they thought they would be immediate casualties of a higher threshold of leadership. "The law should bar anyone charged for criminality," he says.

Makueni Senator Mutula Kilonzo Jnr says Chapter Six has been watered down.

“It is being used as an academic chapter,” says Mutula, referring to the fact that corruption suspects are allowed to remain in office when Kenyans intended to bar them entirely.

A 2015 socio-economic audit of the Constitution by a team led by former Auditor General Edward Ouko endorses the Makueni senator’s assertion as do lawyers Julie Soweto and Bobby Mkangi.

In their report, the Ouko-led team faulted weak legislation as the greatest impediment to the effective implementation of Chapter Six.

“Parliament, in response to Article 80 of the Constitution, enacted the Leadership and Integrity Act in 2012. However, this Act has come under criticism for being weak and lacking in stringent sanctions that deter non-compliance such as barring persons found to have breached the provisions from holding public office and the removal of those already in public office,” the report states.

Former Auditor General Edward Ouko. [Edward Kiplimo, Standard]

The audit report recommends that Parliament beefs up the Act with explicit provisions to bar those who lack integrity from holding public office.

“Review the Act to also provide for a lifestyle audit of state officers as a means of enforcing the provisions of Chapter 6 to facilitate early detection of incompliance,” the team recommended.

Several quarters have offered a similar counsel throughout the existence of the Jubilee administration that has been riddled with corruption.

In 2018, President Uhuru Kenyatta promised a lifestyle audit of all public servants, which seemingly never targeted top government officials, given their results have never been shared with the public.

In recent times, the Judiciary has received the most praise for upholding constitutionalism.

Justice Mumbi Ngugi’s 2019 ruling barring governors facing corruption charges from accessing office has set judicial precedent.

But beyond that, legal experts hold that nothing much has been done.

Mkangi, one of the experts who wrote the 2010 Constitution, believes  Kenya has done poorly in inculcating integrity, pointing out various reasons.

“Chapter Six was meant to infuse ethical leadership but this is not the case,” he says. “Kenyans wanted to cure the ill of politicians personalising public office but we still see that happen. It may be worse now.”

Soweto, like Mutula, believes the bar of leadership and integrity is lower courtesy of poor legislation, and says our troubles are due to violation of provisions on integrity.

“Chapter Six should have driven our Constitution but there is no goodwill from the political class,” she says.

The two lawyers observe that while the government is largely to blame for watering down the leadership and integrity provisions, the problems lie deeper.

“We need to look at our society because these leaders don’t come from space. When the ones with questionable wealth come to us during campaigns, we don’t examine them. Perhaps we need to evaluate our values,” Mkangi says.

“It goes back to the leaders we want to choose. Before we elect them, we should examine whether they meet the requirements of Chapter Six because if they don’t they will only care about protecting their interests,” says Soweto.

They blame political interference, which allows the political class to defeat public interest, and Parliament for reneging on its duty.

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