President told to reject amendments to EACC law

EACC CEO Halakhe Waqo (left) with his deputy Michael Mubea. The EACC (Amendment) Bill, 2015, recommends that the two be kicked out of office. [Photo David Njaaga/Standard]

Pressure is mounting on President Uhuru Kenyatta to reject the amendments the National Assembly passed in the law establishing Kenya’s anti- graft agency.

Sunday, the Law Society of Kenya, National Council of Churches of Kenya (NCCK), Commission on Administrative Justice (CAJ), Transparency International (TI) and Supreme Council of Kenya Muslims (Supkem) were united in criticising the changes in the Ethics and Anti-Corruption Commission (Amendment) Bill.

The amendments, passed last Thursday and now awaiting the President’s consideration, were termed as an affront to the independence of the body and designed to derail the war on graft especially with current high profile cases either under probe or in court. Besides the controversial sacking of Ethics and Anti-Corruption Commission (EACC) Chief Executive Halake Waqo and his deputy Michael Mubea, MPs also changed the mode of appointment of commissioners by doing away with a recruiting panel composed of representatives of diverse groups.

Instead, MPs want the Public Service Commission (PSC) to recruit the commissioners, whose number has been raised from three to five, but on part-time basis.

Critics interpret the moves alongside concentrating powers in a chief executive, who is likely to be influenced by the powers-that-be, as an attempt to interfere with the independence of the commission.

Should the President assent to the bill, Waqo and Mubea would be forced out of office, and the recruitment of commissioners to replace Mumo Matemu, Irene Keino and Jane Onsongo, who were hounded out of office, would be guided by the new provisions.

Sunday, State House Spokesperson Manoah Esipisu said the President will give the bill "careful thought" once he receives it from Parliament.

"There will be no further comment on this matter until the President has completed his deliberations," Esipisu said.

All-inclusive panel

He spoke on the back of rising demands that the President rejects the amendments.

TI Executive Director Samuel Kimeu said the House erred by targeting the secretariat, adding that TI will petition President Kenyatta to reject that provision. "We have asked the President to reject that amendment and we will be sending our petition to him on Monday (today)," Kimeu said.

LSK Chairman Eric Mutua said President Kenyatta should reject the amendment removing the provision for an all-inclusive recruitment panel failure to which the lawyers' body will challenge the law in court.

"A panel will deliver a more independent commission as opposed to just leaving it at the whims of the PSC. Under the new Constitution, all commissioners have been picked by a panel and to me it's a wrong move to have removed all those institutions and apportioned the role to only PSC," Mutua said.

Commission on Administrative Chairperson Justice Otiende Amollo also faulted the removal of the requirement of a multi-stakeholders selection panel to recruit the chairperson and members of EACC.

"While we appreciate the role of PSC in public service, we are of the view that the proposal would have serious implications on the independence of EACC. The panel was intended to infuse diversity, objectivity and credibility in the recruitment process," said Mr Amollo

He continued: In any event, it is doubtful whether PSC can solely recruit the Chairperson and Members of EACC yet it lacks disciplinary control over them. Moreover, this would create an inconsistency since all other commissioners are appointed through a similar Multi-Stakeholders Panel."

The PSC, Office of the President, State Law Office, the Judicial Service Commission, Kenya National Human Rights Commission, Gender Commission, Association of Professional Societies of East Africa and the Media Council of Kenya are some of the bodies that had representatives in the panel that picked the commissioners who were kicked out.

Others include the joint forum of the religious organisations, with representatives from Supkem, Kenya Episcopal Conference, National Council of Churches of Kenya, Evangelical Fellowship of Kenya and Hindu Council of Kenya.

Sunday, Supkem Secretary General Adan Wachu termed the move by MPs unconstitutional and unethical, and faulted the proposal to have commissioners only picked by PSC.

"As Supkem, we want to call upon the President to ignore what MPs have done and take this country forward. As a country, we are becoming rudderless. We have developed a culture where if things don't go the way you want or you are mentioned in connection to corruption, then you rush to say this or that body has lost its mandate," Mr Wachu said.

NCCK Secretary General Peter Karanja said Kenyans are concerned that MPs want to encroach on functions of other public entities, adding the move to shift the recruitment to the PSC was ill advised.

"We know some MPs are under investigation while some of them are close to those under probe and this is an attempt to interfere with the cases. As NCCK we advise the President not to assent to that bill and refer it back to Parliament with proper recommendations," Karanja added.

Amollo said the amendments are also likely to concentrate EACC's powers on the commission secretary, which is a departure from the present situation where it is dispersed for accountability and objectivity.

"In our view, it would be a negation of the Constitution for legislation to transfer the exercise of executive powers and functions from commissioners to another person such as the secretary to the commission or the secretariat," he argued.

And the chairman of the National Assembly Justice and Legal Affairs Committee Samuel Chepkonga  also said the move to sack the two top officials contradicts section 17 of the EACC Act, which stipulates the process of removal from office of the CEO.

Check excesses

"In my view, there are more urgent things in that bill. These others are sideshows and even if the President signs it today, it will not have consequences. It's the work of the Judiciary to check the excess of both the Executive and Parliament," he said.

But Ugenya MP David Ochieng, who is member of the House's Justice committee, said the National Assembly has powers to approve and also recommend the removal of the current CEO as the drafters of the amendment are seeking to have the body reconstituted.

But he said the same does not apply to the deputy CEO position, which he said is not statutory.

Solicitor General Njee Muturi said he would not comment on the changes as yet.