Looming changes sound death knell to anti-graft commission

H.E. President Uhuru Kenyatta with the Ethics and Anti-corruption Commission Chairman, His Grace Rtd. Arch Bishop Dr. Eliud Wabukala at State House, Nairobi.

The curtains are coming down fast for one of the most vilified commissions Kenya has ever seen.

The favour that the Ethics And Anti-Corruption Commission (EACC) once carried looks to be fast fading, with Parliament being the latest arm of government to train its guns on it in what might be the commission’s defining moment.

National Assembly Majority Leader Aden Duale has confirmed to the Sunday Standard that he is in receipt of proposals to two pieces of amendments in law that would strip the EACC of its core mandate.

“One of the recommendations is to take away EACC’s investigation powers and the other is to deny the commission a chance to hold proprietorial powers currently enjoyed by the Office of the Director of Public Prosecutions,” Duale said.

If they sail through, these two key proposals would sound the death knell on EACC and perhaps set in motion a series of events that would reduce it to playing the less glamorous role of moral police.

The recommendations are part of a Bill presented to Parliament on Wednesday by Aldai MP Cornell Serem. The amendment Bill seeks to repeal Article 79 of the Constitution, which creates the anti-graft agency. It requires a two-thirds majority to sail through the House.

“EACC has demonstrated a failure to address issues under its mandate leading to the current rampant cases of corruption in the country,” reads the Bill. The commission “unnecessarily duplicates the investigative work of the Director of Criminal Investigations (DCI) under the National Police Service (NPS)”.

In spite of this though, the commission insiders say there is concerted effort by individuals within the country’s intelligence system to break up the agency, alleging that the National Intelligence Service (NIS) is being used to discredit and disparage its work.

“This is not the first time this is happening and this will not be the last time,” Yassin Amaro, the commissions spokesman, told the Sunday Standard.

Amaro says the commission has in the last months completed and submitted investigations touching on several scandals.

“People are quick to forget and point fingers. We were the first people to take the maize scandal suspects to court,” he says.

“For the first time the proverbial big fish have been presented before courts. What happens after that is not within our mandate.”

Hardly enough funds

The knives have been out for the commission that was last year allocated Sh2.8 billion to boost its anti-graft war chest. In the last five years, the EACC has received Sh12 billion in the war against corruption, a figure that it has repeatedly said is hardly enough for the fight.

The hangmen though will hear none of this. Public belief in the agency has consistently been on the wane.

“Whenever the war on corruption gathers some steam, there is always an expected push-back. And this is it,” Amaro says.

In a speech two weeks ago at the launch of the National Integrity Academy, perhaps sensing the tightening noose around the commission, Chairman Rev Eliud Wabukala reminded the public of the achievements the commission has had over the past year. Among these, he said, was the finalising and submission of 183 files on corruption and economic crimes to the Office of the Director of Public Prosecutions.

“135 of these were recommended for prosecution, 49 cases were finalised in court and 39 resulted in convictions,” Wabukala said.

He also said the commission was able to trace illegally acquired public assets estimated at Sh2.3 billion.

Although perceptions of inaction persist, some believe the solution the country needs does not lie in weakening the EACC.

“The fact that the current commission has not lived up to expectations cannot be reason to cripple it,” says Makueni Senator Mutula Kilonzo Junior. “Chapter Six of the Constitution did not envision a weak or moribund commission which is the only body that has a constitutional mandate to check on the conduct of public officers.” 

It wasn’t always this way though. There was a time the EACC enjoyed a purple patch. But now, the perception of inaction from the commission that seems to be stuck on first gear has set the hounds on itself.

And the hounds, perhaps buoyed by lacklustre and a media averse chairman, have smelled blood and are going for the kill.

The commission is however adamant, insisting that its mandate is enshrined in the constitution

“Everyone is talking about EACC, but you have to ask yourself whether the other agencies in this war are genuine in their efforts,” Amaro says.

“The needs of the moment should not cloud the gains of the future.”

Since its inception the EACC has survived several calls to disband it as a result of external pressures such as political horse trading, and at times purely from internal wrangles that have played out in the public gallery.

Fresh trouble

Three years ago, the commission ran into fresh trouble pitting the then chairman Mumo Matemu, chief executive Halakhe Waqo and his deputy Michael Mubea against each other. An exchange of letters between Matemu and Waqo on an alleged irregular suspension of Mubea pointed the country to the frosty relationship between the institution’s two senior most office holders.

Back then, Mubea was suspended for a month pending investigations into allegations of malpractice but was reinstated just three days later after Matemu and Waqo agreed to a cessation of hostilities.

Of the three top officials, it is the chairman who exited. Mubea and Waqo remain at Integrity Centre, the institution’s headquarters. It was not lost to the public that at that time, investigations into one of the country’s most intriguing scams, the Anglo-Leasing scandal, was under renewed probe by the EACC.

Almost two decades ago, yet another of the commission’s chairperson ran into head winds.

The bone of contention, as it is now, was the commission’s investigating powers. In March 2000, Justice Aaron Ringera was appointed as the chair of the Kenya Anti-Corruption Authority, a precursor to the EACC.

On December 22, 2000 the High Court ruled that the existence of KACA undermined the powers conferred on both the Attorney General and the Commissioner of Police by the Constitution. April 2003 saw Parliament enact two pieces of legislation.

These were: The Anti-Corruption and Economic Crimes Act (ACECA) No. 3 of 2003 and The Public Officer Ethics Act, No 4 of 2003. These two legislations became operational on May 2, 2003.

[Additional reporting by Jacob Ng’etich]  

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