Ethics, integrity and unenforced laws

By Pravin Bowry

Kenya: Routinely Kenyans are being publicly exposed to some national issues which regrettably are trivialised, soon forgotten and archived for life.  

Mockery of existing statutes is made, and by citizens not facing the full force of law, impunity builds up giving the country, in which laws and rule of law are rendered ineffective, a distorted image.

There is need to examine some incidents which have come into the public domain recently and it will suffice if reference is made to only three matters. The first one relates to a certain Member of Parliament who also happened to be an advocate.

Allegedly, the MP did not account for monies which came to him on behalf of a very old lady and after a rigorous legal process. The MP was barred from practicing as an Advocate of the High Court of Kenya. The second is the decision of Parliament to refer the matter of alleged misconduct of six members of the Judicial Service Commission to a tribunal. 

No hearing

And the third is the public announcement by Cabinet Secretary Joseph Ole Lenku sacking 15 senior immigration officers from service, an announcement made in the press without giving a hearing to the unfortunate officers.

Since 2010 we all have been singing the constitutional songs of national values, principles of good governance of state organs, state and public officers. Integrity, transparency, accountability, equity, social justice and even morality are all now inculcated as national principles. The question is whether we have and in the future are willing to apply these principles to real life situations strictly under the law.

The Penal Code largely lays down the  ambit of criminal law and the constitutionally appointed Director of Public Prosecution  has the mandatory duty to investigate, and if found worthy, prosecute all deserving  criminal cases. It is said that no one is above the law and law presumes equality in the dispensation of justice.

And then there is the Ethics and Anti-Corruption Act under which the Ethics and Anti Corruption Commission (EACC) functions. Anti-Corruption matters are not however the only mandate of EACC.

The Leadership and Integrity Act establishes procedures and mechanisms for the effective administration of all laws touching on leadership and integrity and this mandate is  by law also vested onto EACC since August 2012. Breaches of principles of sound leadership and integrity attract grave and serious consequences under Chapter Six of the Constitution

There is also the Public Officer Ethics Act which comes into play and has an elaborate code of ethics for all government employees and public bodies such as the armed forces, officers of various commissions and even the members of the National Assembly.

Most surprisingly, despite the managemental woes of EACC attributable to the process of law, EACC as the watchdog of national values has so far totally failed and neglected its core portfolios of dealing with breaches of ethical and integrity matters.

Constitutional duties appear to have been relegated by EACC to insignificance rendering the legal provisions of great importance into dormancy.

Perhaps it is time to awaken EACC from its slumber!

Moral fibre

Kenyans have not been told or educated as to how EACC proposes to confront legalities of ethics, leadership values and integrity.

More importantly, how and when will the Commission embark on taking matters under Article 80 of the Constitution into its enforcement docket and dealing with those flouting the laws?

 In the context of the conduct of the lawyer/MP, prima facie the DPP must play his role and ascertain whether the offences were indeed disclosed.

Under the Attorney General is a department of Advocates ‘Complaints Commission. Did it fail the poor client just because the complaint was against a MP?

The case of six the JSC members inevitably will dwell into moral and ethical aspects of the concerned individuals. If the targeted JSC members have any moral fibre, they should resign pending the findings of the proposed Tribunal.

Why have they not vacated office to await a verdict or until, most likely, their redress from the courts in the inevitable applications, merited or otherwise, by way of judicial review or constitutional references?

The public sackings of immigration officers by Cabinet Secretary Joseph ole Lenku also raise issues akin to the Charity Ngilu saga. Does he enjoy the power to fire public servants at will and in the manner he did through national media? Even they are entitled to the right to be heard.

There is a parallel in the debacle to the Ngilu matter. Should he too be sanctioned by Parliament for exceeding his mandate?

Laws are in place, the will to follow and enforce them must manifest itself lest the law is treated as a decoration and for cosmetic political value.

The DPP, the Inspector-General of the National Police Service, EACC,  and even the AG must appreciate their new responsibilities as is happening with parliamentary select committees and the National Assembly and crystallise ethics, integrity, morality and leadership into meaningful national principles and values to which each citizen must be answerable.

The writer is a lawyer.

bowryp@hotmail.com