Internal wrangles indicate EACC walking path to self-destruction

NAIROBI: Kenya’s top anti-graft agency is once again embroiled in an in-house controversy that threatens to scuttle the little meaningful gains made since its inception. And in its wake, leave, as it has done often and resoundingly, an executive unable to carry through its mandate.

On Tuesday, the Ethics and Anti-Corruption Commission ran into fresh trouble pitting chairman Mumo Matemu, CEO 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 an apparent rift of relations between the two senior most office holders.

On Monday, Mubea was suspended for a month pending investigations into allegations of malpractice but was reinstated on Friday after Matemu and Waqo agreed to end wrangles that had gripped the commission following the deputy CEO’s suspension.

The lines of argument in this fresh row ring a familiar tune to many Kenyans and the scenes on display have been played and replayed at the theatre of corruption to an audience captivated by the intrigues for just the right amount of time to forget the issues that directly affect their lives.

BIG AND SMALL FISH

Kenya has experienced a tumultuous history in the fight against graft. The country’s anti-corruption legislation dates back to 1956 when the now defunct Prevention of Corruption Act (formerly Cap 65, Laws of Kenya) was enacted. This statute was in operation from August 1956 to May 2003.

Amendment of the Prevention of Corruption Act (Cap 65, LOK) in early 1997 led to the creation of the Kenya Anti-Corruption Authority (KACA), whose first director was John Harun Mwau.

It was believed that Mwau, a no nonsense character at face value, would at least set out to investigate some of the biggest cases of the day such as the Goldenberg scandal. This was, however, not to be.

After only six months in office, Mwau was suspended and later removed from the commission in 1998 through a Judicial Tribunal appointed by President Daniel Moi.

Mwau’s dismissal followed a public altercation with the then Minister of Finance Simeon Nyachae after he (Mwau) filed charges against four high-ranking Treasury officials, accusing them of a scheme to evade $3.9 million (Sh357.8 million in current exchange rates) in import duties on wheat and sugar.

Justice Aaron G Ringera was appointed to replace him in March 1999. But soon, the big talking Ringera was to find out that the big fish and small fish he had vowed to prosecute upon his appointment not only carried a trump card, but also had a bite to match.

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. Section 70 of the (ACECA) repealed the Prevention of Corruption Act (Cap 65). KACC was established under the Anti-Corruption and Economic Crimes Act (ACECA) No. 3 of 2003 on May 2, 2003.

In a press conference on the matter, Ringera said that these amendments were a blatant weakening of the KACC “in favour of corruption cartels and networks”.

The Act also established the Kenya Anti-Corruption Advisory Board, an unincorporated body comprising persons nominated by a cross-section of stakeholders. The board made recommendations for appointment of a director and assistant directors.

Its first director was Ringera. By this time, however, it was clear that the anti-corruption net that Ringera had cast was not wide enough to catch the targeted fish. Almost all of them escaped and complaints had begun to emerge over his waning zeal to fight graft.

For instance, there had been complaints that of the more than 3,700 reports of alleged corruption since it was established in 2003, the KACC had only obtained about 30 successful convictions — none of them “big fish”. Justice Ringera argued that it was Parliament that prevented the prosecution of Cabinet ministers and other senior officials, and that the very existence of the KACC over the past four years has been an effective deterrent to what he called “grand corruption”. Following parliamentary pressure in July 2009, Justice Ringera resigned from office, paving way for appointment of Prof PLO Lumumba in September 2010. One of the biggest corruption scandals in Kenyan history, Anglo Leasing had been crafted and executed with little visible investigation or opposition by the anti-graft body.

Lumumba took office after President Mwai Kibaki signed the Ethics and Anti-Corruption Act on August 29, 2011 effectively creating EACC.

His tenure lasted only a year. In August 2011, Lumumba and his four assistant directors also fell foul after a vote of no confidence in them was passed in the National Assembly during debate over the enactment of the new EACC.

At that time, PLO was battling his own corruption allegations put forth by MP Cecil Mbarire over an alleged bribe the anti-graft chief purportedly received in form of a harambee donation.

Matemu, the current boss, and the two member commissioners (Irene Keino and Jane Onsongo) were sworn into office by the Chief Justice on August 5, 2013 after a drawn out appointment process which started in September 2011.

The process involved lengthy parliamentary debate, and ultimately litigation which resulted in a far-reaching decision of the Court of Appeal on the application of Chapter Six of the Constitution of Kenya to the vetting of persons nominated to constitutional commissions, and other high public offices.“In questioning the constitutionality of Mr Matemu’s appointment, the Trusted Society of Human Rights Alliance argued that his integrity was impugned by serious allegations of misconduct in his previous career positions with the Agricultural Finance Corporation (a State owned Bank) and with the Kenya Revenue Authority,” Mars Group director Mwalimu Mati told The Standard on Sunday.

Last week, State House said there was a petition to disband Ethics and Anti-Corruption Commission over its leadership. Spokesman Manoah Espisu said a petition had been sent to the President on the leadership failure in the fight against corruption and it is being considered.

After the long battle to get appointed, Matemu too, seems to be staring a face similar to that of his predecessors.