The Ethics and Anti-Corruption Commission (EACC) should keep off investigations on its chairman Philip Kinisu, Attorney General Githu Muigai has advised.
Prof Muigai warned if EACC’s involvement in the probe is not terminated, questions could be raised about the commission’s independence and its ability to render an impartial decision.
In a detailed letter to EACC vice chairperson Sophia Lepuchirit, a copy of which The Standard on Saturday has seen, Muigai said: “We note that section 42(8) of the Leadership and Integrity Act requires that the investigations should be conducted in accordance with principles of fair administrative action.
“We, however, note from the facts of this case that the commission is also a complainant in the matter, a fact already acknowledged by the commission and hence the reference of the matter to the multi-sectoral team of investigations. This fact alone would raise questions as to the impartiality of the investigations if it were to be conducted by the commission.”
The AG now wants the investigations taken up by the Public Service Commission, as the employer of EACC commissioners.
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The National Assembly’s Justice and Legal Affairs Committee is currently investigating Mr Kinisu’s association with Esaki Limited, a family business whose links with the National Youth Service have raised complaints from the EACC itself. NYS is currently being investigated by the EACC over the loss of Sh791 million. The commission had on July 28 asked the AG to shed light on the import of the allegations raised against its chairman for non-disclosure of conflict of interest owing to Esaki Limited’s association with the NYS.
Kinisu has previously told investigators that Esaki was paid Sh35 million for rendering services to the NYS well after he had resigned as a member of its board. However, he was taken to task for giving conflicting dates on when he had resigned.
In one account, he stated he had resigned in 2008, but later in documents submitted to Parliament, he stated he had resigned as shareholder and director of Esaki in April 19, 2016.
The law prohibits full time commissioners of constitutional commissions from engaging in any other gainful employment. This does not however apply to part-time commissioners. EACCcommissioners are part-time officers, according to Article 250 of the Constitution.
According to the AG’s letter, EACC commissioners, including the chairperson, can hold other jobs provided the engagement does not in any way raise conflict of interest between the personal and public duty.
Gainful employment is defined in Section 26 of the Leadership and Integrity Act as “work that a person pursues and performs for money or other form of compensation or remuneration, which is not inherently incompatible with the responsibilities of the state office or which results in the impairment of the judgement of the state officer in the execution of the functions of the state office or results in a conflict of interest.”