Baraza ruling raises integrity threshold

By Lillian Aluanga-Delvaux

The ruling by the tribunal that investigated the conduct of suspended Deputy Chief Justice Nancy Baraza has raised the integrity bar required of State and public officers.

Baraza is alleged to have assaulted Rebecca Kerubo, a security guard at the Village Market shopping mall, Nairobi, and threatened her with a pistol when she asked to be screened as part of routine security checks.

In its recommendation to have Baraza removed from office for gross misconduct and misbehaviour, the tribunal ruled her actions showed lack of temperament and ability to perform judicial functions.

Baraza has appealed the tribunal’s recommendation, and appears headed to the courts following the Director of Public Prosecutions go-ahead for her prosecution over the incident.

Draft Bill

The ruling over the New Year’s Eve saga comes at a time when there is heightened debate over the draft Leadership and Integrity Bill that the Cabinet has just published.

The Bill, which is among several to be passed by August 27, has seen the civil society and other agencies take issue with ‘attempts to water down’ one of the most crucial pieces of legislation after the Constitution. Those seeking a watertight Bill say the draft, in its current form, negates what was envisaged under Chapter Six.

Top among issues currently in contention is whether presidential aspirants Uhuru Kenyatta and William Ruto should run for office while facing trials at the International Criminal Court (ICC).

There has also been a push by a section of the civil society to have legislators currently facing charges in court barred from holding elective or appointive positions. Other persons they want included are those adversely mentioned in parliamentary committee reports and other commissions of inquiry into various misdeeds. Currently, there are at least 10 MPs in court over various offences, including conspiracy to murder, fraud, corruption, assault, incitement to violence and misuse of public funds.

Chair to the Commission on Administrative Justice (also known as the Ombudsman’s office), Otiende Amollo says attempts to water down the Leadership and Integrity Bill will not defeat enforcement of Chapter Six of the Constitution.

“It is important to have a water-tight Ethics and Integrity Bill that meets expectations of Chapter Six and the aspirations of Kenyans. But Chapter Six of the Constitution remains complete as it is and will not necessarily depend on legislation for its enforcement,” he says.

Amollo says those hoping to diminish the effects of Chapter Six will not succeed, given there are other independent offices constitutionally mandated to ensure its enforcement.

“The Ethics and Anti-Corruption Commission is just one body that has this role. Others include the office of the Ombudsman, the Independent Elections and Boundaries Commission, and in a limited sense the Director of Public Prosecutions,” says Amollo.

Transparency International (Kenya) Executive Director Sam Mbithi says it is crucial to have a water tight Bill on Leadership and Integrity since this is what was envisaged by the Constitution.

“We need a well thought out mechanism to effect Chapter Six to avoid having every contestation on the law ending up in court,” he says. His views are also captured by the CIC, which notes that ‘absence of legislative mechanism for vetting persons seeking State office will force Kenyans to resort to the courts for appropriate declarations; a process that is costly, time consuming and which should only be a last resort’.

Mbithi says the bar set by the tribunal’s ruling on Baraza is not new and is essentially what was set by the Constitution that gives high integrity standards.

“This is what we had for the past two years but never saw it done practically. The recommendations on Baraza now show what is expected,” he says.

Besides the tribunal’s recommendations, the ongoing vetting that has claimed at least six judges is also seen as a sign of the Judiciary’s resolve to set high accountability standards among its officers.

Across board

Now there are calls for a similar resolve across the board in ensuring constitutional requirements on integrity of public officers are upheld.

“We have seen senior public servants vetted but there is nothing similar for Members of Parliament who want to insulate themselves against the same integrity threshold they require of other public officers,” says Haki Focus Executive Director Harun Ndubi. He terms the tribunal’s ruling as a ‘beacon’ that points to the country’s future on integrity standards.

Despite the push to set a high integrity threshold for those seeking State and public office, there is a feeling the current draft Leadership and Integrity Bill 2012, may provide an anti-climax.

In its preliminary review of the Bill, the Commission for the Implementation of the Commission (CIC) identifies ‘critical failings’ of the legislation in its current form, which would make the law ineffective in implementing Chapter Six of the Constitution.  The draft, according to CIC, also contains clauses that are unconstitutional, and fails to establish transparent procedures and mechanisms for effective administration of Chapter Six of the Constitution, which centers on integrity.

Says an excerpt from the commission’s assessment, published in the local media: “The Bill fails to establish a vetting process for persons seeking election to public office whilst also ensuring they conform to the requirements of Chapter Six and the ethical and moral requirements under Articles 99 and 193.”

Breach of laws

The proposed legislation also waters down key aspects of Article 77 that deals with gainful employment and Article 73 on responsibilities of leadership. Other weaknesses include its failure to provide for mechanisms that would allow the EACC to prosecute cases of breach of Chapter Six and placing on public officers requirements for compliance that contravene the Constitution.

The CIC also argues that the Bill, in its current form, would see other public officers continue to be subjected to rigorous requirements for appointment, while State officers will not.

“The current draft Bill undermines the vetting role of the Ethics and Anti Corruption Commission and has no protection for whistleblowers,” says Mbithi.

Other clauses deleted by the cabinet include those that would require state and public officers to declare their wealth as well as provisions that sought to have aspirants secure a clearance certificate from the EACC.

“The preamble doesn’t specifically explain how to provide mechanisms for enforcing Chapter Six and the definition of functions of various relevant commissions is not adequate,” says Ndubi.

The Bill, he says, also seeks to ‘legitimise’ the concept of ‘stepping aside’ for persons being investigated, instead of expressly providing for their suspension or resignation.