It is a matter of time before the legality of the Ethics and Anti-Corruption Commission (EACC) is challenged in court.
My gut feels it will for the third time in a row, expose the Government and bring into question the Attorney General’s legal advice to the Government. The renewal of contracts of the EACC staff by the Public Service Commission soon after the enactment of the Ethics and Anti-Corruption Commission Act No. 22 of 2011 has been as controversial as the issues of the appointment of commissioners of the agency.
It will be remembered that the Law Society of Kenya (LSK) protested such renewal, arguing it violated the law.
The same law used to eject former directors led by Prof PLO Lumumba and his two assistants Dr John Mutonyi, Prof Jane Onsongo and Mr Pravin Bowry and the advisory board led by Okongo Omogeni must be applied to all including the staff whose contracts were purportedly renewed by the PSC. The Act requires any officers working for the former commission to re-apply for employment subject to vetting. Why was the law applied selectively to favour the former staff against provisions of the Act? Isn’t this an abuse of office?
I cannot believe the Government ignored the protest note from the LSK by justifying the renewal, arguing that EACC needed to retain its institutional memory. In justifying the renewal, former Justice Minister Mutula Kilonzo argued: “Imagine a situation where my Lord Jesus Christ is appointed the anti-graft czar and he has no disciples in office! These officers must be retained for their memory of the operations of the office”. Those in Government must be reminded that you cannot use institutional memory to justify a blatant disregard of the law. The law provided for retaining of those officers provided that they re-apply for employment and vetted afresh. You can neither substitute the law with convenience nor institutional memory with integrity.
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In the EACC, we have a body claiming a right to vet persons aspiring to be elected to public office and it therefore must be a body beyond reproach. Its officers must first undergo vetting as the law stipulates before they are appointed to work for the commission.
The EACC is established under section 3 of the Ethics and Anti-Corruption Commission Act. Its composition is provided for under section 4 of the Act: “The commission shall consist of a chairperson, and two other members appointed in accordance with the provisions of the constitution and this Act”.
The chairperson and the members of the commission shall serve on a full time basis and that before assuming office, the commissioners shall take and subscribe to an oath of office as prescribed under the first schedule.
It is common knowledge that the designate chairperson of the commission has not assumed office owing to integrity issues raised against him. It therefore follows that the commission as currently constituted does not comply with the provisions of section 4 as read together with section 7 of the of the Act.
Section 18 of the Act provides that in appointing staff, the commission shall ensure that; at least one-third of the employees are of either gender and that such appointment must reflect ethic and regional diversity of the Kenyan people. The law therefore provides on how the staff should be appointed. Section 34 of the Act provides for the transfer of staff of the former Kenya Anti-Corruption Commission.
The Act stipulates that any member of the former commission who wishes to work for the new commission shall make an application for employment and the commission shall vet such person to ensure they are fit to serve.
This then leads to the question: Are the operations of the EACC as currently constituted, legal? Could any investigations currently undertaken by the EACC pass the test of credibility?
The writer it an Advocate of the High Court