Why new Bill puts high stakes graft cases at risk

By David Ohito

The fate of the Kenya Anti-Corruption Commission (KACC) hangs in the balance over fears it could be disbanded when new law takes effect.

Also to be affected are the high-profile corruption cases and the progress in fighting graft that could be stalled by the fresh laws Parliament is set to pass.

The commission could, therefore, cease to exist for the third time since the Anti-Corruption Act was enacted in December 1997, when the anti-graft body was called the Kenya Anti-Corruption Authority (Kaca).

The Standard is in possession of letters KACC sent to President Kibaki and Prime Minister Raila Odinga, through the Ministry of Justice Ministry, cautioning against the proposed law.

The commission argues it faces disbandment if Parliament endorses amendments to the Ethics and Anti-Corruption Commission Bill, which is before the House.

"Also at risk is the loss of crucial evidence and continuity of investigations and prosecution of corruption cases should the Act be passed in its present form," said a senior officer at the Integrity Centre.

KACC is handling sensitive investigations some of which are at advanced stages, including Anglo Leasing files, Goldenberg, the Jersey Extradition case, and several ministers whose heads could roll.

Consequently, KACC warned: "To reconstitute the organisation at this stage would compromise the momentum at the commission."

The commission petitioned the two principals to consider crucial transition clauses, which may disband KACC and prove disastrous to the fight against corruption.

Top-level consultations have been going on, but little progress made, even as the Ethics and Anti-Corruption Commission Bill 2011, went through first and second reading in Parliament on Tuesday.

KACC can only be saved now at the committee stage, where clauses are amended and or adopted before being brought to the House for approval.

And with Parliament pressed for time to rush through Bills to beat timelines of implementation, there is fear MPs may not amend the defective clauses. In a letter sent to the President and the PM, experts questioned transition clauses.

"The issue of transition and incorporation of additional offences remain unclear and requires to be addressed in the context of the country’s obligation under the United Nations Convention Against Corruption," KACC’s letter to the principals notes.

KACC argues: "The commission is of the opinion that the view taken by Commission on Implementation of Constitution and some members of the Cabinet sub-committee that the proposed Ethics and Anti-Corruption Commission is a new organisation that has no relation with the current KACC, may not be an accurate and organic interpretation of the Constitution."

Bad precedent

KACC has raised the red flag with Kibaki, Raila and Justice Minister, Mutula Kilonzo, warning that the Bill in its present form "is not only delimiting, but operationally disastrous and a fatal recoil in the fight against corruption".

In the terse letters sent from Integrity Centre to the President, the PM, and Justice Minister, KACC argues against attempts to create a new body.

"To form an entirely new anti-corruption body would set a bad precedent. It would be the third time an anti-corruption agency is being disbanded and a new one formed, " KACC says.

In December 2000 the Kenya Anti-Corruption Authority was disbanded after being in existence for only three years. The Anti-Corruption Police Unit, which replaced it was again disbanded three years later, when KACC was established through the Anti-Corruption and Economic Crimes Act 2003.

Now KACC staff fear their contracts could be terminated.

"If the Ethics and Anti-Corruption Commission Bill passes, the cost to the taxpayer would take half of KACC budget in payments to staff and management for the balance of contract in gratuity," said a lawyer at Integrity Centre, who declined to be quoted because he is not allowed to speak to the Press.

In the petition, KACC says "termination of contracts of employment for existing staff to rehire them to the Ethics and Anti-Corruption Commission has serious financial implications".

The commission wants transition, which though critical, has not been adequately addressed by the Bill.

"The commission is afraid that if this critical issue is not properly addressed, KACC operations run the risk of shutting down, with serious consequences to the fight against corruption," the KACC letter says.

Among the critical issues raised is that the Bill purports to amend Anti-Corruption and Economic Crimes Act 2003, but does not give the proposed commission added powers to fight corruption.

"This means the commission will not function until either an appropriate amendment is made or until a new law under Article 80 is enacted. The effect is that the new commission will be stillborn and the work in progress could stall," says the letter.

It also warns whereas the director reports to AG recommending prosecution or other action, there is no provision in the Act conferring similar powers on the secretary of the proposed agency.

In December 1997, the Kenya Anti-Corruption Authority (Kaca) was established following an amendment to The Prevention of Corruption Act, which was the statutory basis for corruption investigations since 1956.

Reconstituted

The following year, its first Director, Harun Mwau, was dismissed for "incompetence and acting in excess of powers" after a tribunal appointed under the Act ruled. Thereafter, the advisory board resigned.

Kaca was reconstituted in 1999, with the appointment of a new director and a new advisory board.

On December 22, 2000, the High Court ruled that the provisions establishing Kaca under the Prevention of Corruption Act, and especially those giving Kaca, the powers to investigate and prosecute cases were unconstitutional. There was no appeal against this decision as the Attorney General determined that the matter had been conclusively decided against Kaca.

In May 2003, after the election of President Kibaki in December 2002, Parliament repealed the Prevention of Corruption Act and enacted the Anti-Corruption and Economic Crimes Act, which established the Kenya Anti-Corruption Commission and defined corruption offences, and economic crimes.

In September 2003, the KACC Advisory Board appointed Justice Aaron Ringera as the first director of KACC. Ringera left office last year.