By WAHOME THUKU
On September 5, last year, Parliament enacted a law to establish a new body to fight corruption. Under Section 3 of the Ethics and Anti-Corruption Commission (EACC) Act (2011), the body was established to take over from Kenya Anti-Corruption Commission (KACC).
Under the new Act, the director and assistant directors of KACC were excluded from crossing over to the new EACC. The three commissioners were to be appointed under the new law within three months.
Meanwhile, on September 8, last year, Ms Jane Muthaura who was the Principal Officer, Finance and Accounts was designated by the EACC board to oversee operations and affairs of the commission during the transition period.
The board, which had been retained from KACC for 90 days, concluded its mandate on December 6, last year. They handed over the operations of the commission to Ms Muthaura, assisted by other officers of the commission.
- 1 Official says anti-graft body acted outside law
- 2 Official says anti-graft body acted outside law
- 3 Duo moves to court to bar new EACC officials
- 4 Case seeking to block KACC probe dismissed
The Treasury Permanent Secretary appointed her as accounting officer of the commission. On December 2, last year, Head of Public Service wrote informing her she had been appointed Secretary of the commission pending appointments of a substantive Secretary.
Ms Muthaura sought a legal opinion from Attorney General on her new status. The AG wrote back on January 23 advising her that she could assume all functions of the office of Secretary of EACC until a substantive holder was appointed.
An NGO, African Centre for International Youth Exchange (ACIYE) and two other people John Obok and Caleb Okech filed a petition at High Court on July 31 questioning, among others things, the legality of the acting Secretary of EACC.
Through lawyer Tony Oluoch, they argued that Ms Muthaura was acting in the position without having ever subscribed to oath of office as required of a holder of State office, by Article 74 of Constitution.
As such, she was holding the office illegally. All her actions in that office were illegal, they submitted. The petitioners demanded that she be held responsible for all financial transactions and income she had earned in that capacity.
Muthaura and EACC argued that she was not the acting Secretary hence not required to subscribe to the oath of office. Muthaura claimed her role was only that of a trustee of the commission.
Through lawyer J Olola, she contended that although she was designated as “acting Secretary” by Head of the Public Service, she really could not hold that office.
The Head of Public Service could not appoint her as acting Secretary since the procedure for the appointment was clearly set out.
Article 74 of the Constitution provides that before assuming a State office, acting in a State office, or performing any functions of a State office, one must take and subscribe the oath or affirmation of office.
By interpretation of the law and the Constitution, High Court Judge David Majanja easily concluded that Secretary of EACC is a State office and the holder must take and subscribe to the oath of office.
There was no dispute that Ms Muthaura had neither been appointed Secretary under the EACC Act nor subscribed to that oath of office.
But was she performing the duties of a Secretary to the EACC? Under the law, the Secretary of the commission is the CEO, the accounting officer and is responsible for carrying out decisions, day-to-day administration and management of the commission and supervision of other employees, among other duties.
It was clear that Muthaura was performing duties of Secretary of the commission.
“Although Muthaura is not the Secretary nor is she capable of being appointed as the Secretary of the commission in accordance with the Act, she is carrying out acts which ordinarily fall within the duties carried out by the Secretary as provided by Section 16. Whether she describes herself as a trustee or not, the fact is that she is performing actions of a State office within the meaning of Article 74,” Majanja ruled.
The judge said it was not necessary that one had to perform all duties of that office, but it was enough that she was only performing some of the duties.
“Ms Muthaura has been designated as accounting officer by the PS, Treasury in accordance with Section 17 of the Government Financial Management Act, 2004. The duties outlined in the appointment constitute the kind of duties that would be performed by the Secretary to the Commission who is the accounting officer of a corporation.”
Majanja pointed out that taking the oath of office was an expression of one’s fidelity to the Constitution and a sign that one is ready and willing to abide by the Constitution.
Majanja ruled that Ms Muthaura was in breach of Article 74 of the Constitution for having continued to act as State officer without having taken and subscribed to the oath of office.
But in his opinion, the case highlighted challenges that arise under the new constitutional order. Uncertainties could be created by litigation and by the fact that processes required to effect the transition are controlled by human beings and not machines, he said.
“The court is required to consider all facts and more importantly to address itself to objects and intent of the Constitution,” he added, “Article 259(1) requires that the Constitution be interpreted in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental rights and freedoms in the Bill of Rights and permits development of the law and contributes to good governance,”
Majanja said EACC is the foundation upon which Chapter Six of the Constitution on Leadership and Integrity is built.
Any approach to this issue should be to secure the institution rather than diminish its capacity.
He added the functions performed by Muthaura were necessary to ensure the survival of a constitutionally mandated body and were done in good faith without any intent to undermine or threaten the Constitution. Majanja held that Muthaura was entitled to continue performing duties of Secretary to the commission until a substantive holder was appointed.
He ordered her to subscribe to oath of office within 14 days from the date of the ruling as a condition to continue performing the functions.