Lawyers differ over CIC court action on ‘weak’ integrity law

By Stephen Makabila                            

Did the Constitutional Implementation Commission err in moving to court to block what it terms a ‘weak integrity law’ recently passed by Parliament?

On August 25, MPs watered down the Leadership and Integrity Act in a manner that would see suspected criminals and individuals who fail the integrity test easily ascend to leadership positions in the coming election.

Legal experts have differed on the CIC move ahead of the hearing on October 10. Chairman of the Centre for Multi-Party Democracy (CMD) Justin Muturi says CIC has taken a dangerous path, irrespective of whether it wins the court case or not.

“Under the new Constitution, the legislative function is an exclusive preserve of Parliament and Senate.  Even if the court rules in favour of CIC, it cannot make the law or suggest on how the law should be made,” said Muturi.

Muturi said in case CIC loses the case, it will be left with an egg on the face, and a challenge to redeem itself.

Fisheries minister Amason Kingi, a lawyer, says he was shocked to see CIC chairman Charles Nyachae move to court even after agreeing to the changes on the Integrity Bill with the Constitutional Implementation Oversight Committee (CIOC).

Putting theories

“I am a member of the implementation committee and we had discussed and agreed with Nyachae that we avoid putting theories in the Act, which cannot be implemented. I was shocked when he moved to court,’ noted Kingi. But when contacted, CIC Commissioner Kamotho Waiganjo, noted there is nothing like ‘agreements’ in the law making process.

“Our stand over the integrity law has always been in the public domain. The Bill we developed in consultation with the Attorney General, Ethics Commission, Kenya Law Reform Commission (KLRC) and the Ministry of Justice is not what was passed in Parliament. What was passed does not meet the Constitutional threshold,” Waiganjo told The Standard on Sunday.

Senior Counsel Paul Muite says CIC has the mandate to question why the Integrity Bill was watered down in Parliament, because its views, and not Parliament’s, have to be dominant in the Act.

 “CIC was given the mandate to develop Bills to implement the Constitution in Consultation with the AG, and the Kenya Law Reform Commission. The Commission has the right to demand that the Bill that was developed should not have been weakened by Parliament, but the final verdict lies with the Court,” added Muite.

Vice-President of the East African Law Society James Mwamu agrees with Muite, arguing CIC is on the right path and that it was not the first time it was moving to court.

“It’s the work of the courts to interpret the law and provide checks and balances. It should decide which institution between CIC and Parliament is telling Kenyans the truth,” said Mwamu, who is also a member of the Law Society of Kenya council. In moving to court, CIC under Nyachae argues Parliament’s action of passing the watered down Leadership and Integrity Act was a deliberate attempt to sabotage the enforcement of strict ethical and moral requirement of Chapter Six of the Constitution.

“Parliament’s passing of the Act in its current form is a deliberate attempt at sabotaging strict enforcement of ethical and moral requirements,” argues the commission.

The CIC wants the court to declare the Act enacted last month illegal and unconstitutional.

The Act passed by Parliament paves way for those with pending criminal court cases to contest, strips Ethics and Anti-Corruption Commission of powers of getting information from Government bodies on individuals seeking leadership positions and denies the commission prosecutorial powers and ability to offer compliance certificate to candidates in accordance with Chapter Six.

Seeking posts

Those seeking elective positions will not be vetted by State agencies, they will not have to pay penalties if they contravene Chapter 6 and it would not be necessary for them to declare their wealth.

CIC through lawyer Njoroge Regeru is seeking the intervention of the courts to ensure proper legislation is enacted establishing procedures and mechanisms for the effective administration of the chapter on leadership and integrity.

On Thursday, High Court Judge David Majanja certified the suit as urgent and directed that all parties are served and the case heard on October 10.

“Even if CIC loses, it would have played its role of trying to ensure the Constitution is not watered down. If it wins, amendments have to follow in Parliament on specific provisions to strengthen the integrity law,” added Mwamu.

Mwamu argued Parliament cannot be left to run-away with some of the excesses because its not a supreme organ, but just one arm of Government. “You look at how Parliament has adulterated the Political Parties Act and you see honourable members running amok. If they pass laws that do not rhyme with the new Constituion, they have to be stopped,” added Mwamu.

Moi University law lecturer Titus Bittok says it is in order to check the Legislature for watering down the Constitution.