Waqo: Proposals to disband commission unjustified

EACC Chief Executive Officer Halakhe Waqo speaks to staff writer Lilian Aluanga-Delvaux on a host of issues, especially those that touch on the commission’s performance

The Standard on Sunday: The EACC has lately been accused of not acting independently. Comment.

Waqo: Decisions to prosecute are made by the DPP on the basis of evidence available. The commission’s mandate is to investigate and make appropriate recommendations to the DPP. The recommendations range from prosecution, administrative action and even closure. The DPP reviews the evidence and arrives at his conclusion independent of the recommendations made by the EACC.

Questions have been raised about whether the Commission is currently properly constituted. Has this in any way affected EACC’s operations?

Unlike its predecessor, the Kenya Anti-Corruption Commission (KACC), the EACC is anchored in the Constitution and its independence guaranteed just like all other Chapter 15 commissions. Besides, EACC is established by the Constitution as body corporate with perpetual succession. This means that EACC, as a legal person, exists independent of the occupiers of its offices. The existence of a vacancy in the body corporate does not imply that the EACC ceases to be properly constituted or to exist. This position is mirrored in the constitutive statute, the Ethics and Anti-Corruption Commission Act, which clearly delineates the functions of the Commission (as a body corporate), the distinct functions of the commissioners and those of the secretary.

The Constitution, however, unambiguously vests the power and responsibility to execute the functions, which belongs to the body corporate, upon the office of the secretary who doubles as the chief executive officer. The responsibility of the commissioners, as provided for in section 11(6) of the Ethics and Anti-Corruption Commission Act, is to give strategic direction, establish strategic linkages and maintain discipline within EACC a policy and strategic level and not operational. All the functions that properly operationalise the mandate of EACC are executed by the secretary.

It has been claimed that the commission has been engaged in a public relations exercise, given the manner in which it conducts its activities. It is further claimed that while EACC has been good at publicising arrests, it has not shown equal zeal in informing the public of the outcome of some of these highly publicised cases. What is your view on this?

EACC does not prosecute cases. This function is vested in the office of the DPP. But this does not mean that EACC has no concern for the results of anti-corruption and economic crime cases being prosecuted. Indeed, EACC takes an active role in presenting evidence in court. Granted the slow pace of court processes, these decisions end up being few and far between every year.

A list of public officers linked to graft was, a couple of months ago, presented in Parliament by President Uhuru Kenyatta, raising questions on whether this was in order. Comment.

The President has a constitutional duty to address a Special Sitting of Parliament on all the measures taken and progress achieved in the realisation of the national values, referred to in Article 10.

Good governance, integrity, transparency and accountability are core national values. The President is obligated by the Constitution to address issues and measures taken for the achievement of these values. Anti-corruption efforts answer directly to the realisation of all the foregoing values. The President was, therefore, within his constitutional mandate to address the government’s commitment to deal firmly with corruption which is a threat to our security, fundamental rights and social economic transformation as a nation.

The report given by EACC to the President, containing a list of public officers under investigations, was also procedurally done. Under Article 254(2) of the Constitution, the President, the National Assembly or the Senate may require any commission or a holder of an independent office to submit a report on a particular issue.

Reports required under this Article are to be published and publicised.

What have been the commission’s greatest challenges in fighting graft?

Persons under investigations or those arrested for prosecution often seek to stop investigations, arrest and prosecution through applications and constitutional petitions filed in the High Court. The slow judicial processes are a cause for lengthy delays, some as long as five years. This has also had adverse effects on recovery of corruptly obtained assets. Currently, hundreds of cases are pending before courts countrywide and their slow pace of trial only serves to embolden the corrupt.

Would you say there is political will to fight corruption?

In academic discourse on governance, lack of political will is often cited as one of the major impediments to the fight against corruption. It is not lost to the nation and the commission that anti-corruption efforts are enjoying support of the President. He has demonstrated by word and deed that corruption will not be tolerated.

There have been proposals made to disband the commission. Would you say this is justified?

Proposals for disbandment are unjustified. We would probably need to interrogate the sources of these proposals to establish if they are being made in good faith. Globally, anti-corruption agencies often attract negative criticisms and some are indeed disbanded through instigation of corrupt networks.