AG, EACC oppose amendment to Anti-Corruption Act

Integrity centre building that houses the Ethics and Anti-Corruption Commission. [David Gichuru, Standard]

Opposition is mounting over an attempt through Parliament to water down the fight against corruption.

Ethics and Anti-Corruption Commission (EACC), Office of the Attorney General (AG), Office of the Director of Public Prosecutions (ODPP), and Transparency International Kenya (TI-Kenya) described as dangerous, the bid to amend the Anti-Corruption and Economic Crimes Act.

Mbeere North MP Geoffrey Ruku has drafted a Bill that seeks to delete provisions under section 45 of subsections 2(b) and 2(c) of the Act.

By deleting subsections 2(b) and 2 (c), the Bill seeks to decriminalise certain aspects of public procurement, property disposal, contract tendering, fund management and expenditure.

The Bill currently under the Justice and Legal Affairs Committee (JLAC), seeks to cushion public officers from prosecution if they fail to comply with procurement guidelines and the implementation of unplanned projects.

Ruke said the amendment is aimed at strengthening the fight against corruption by removing undue criminalisation of procurement flaws which instead, should be dealt with through administration action.

While appearing before the JLAC, the State agencies argued that the amendment seeks to delete from the law two key corruption offences that exist to protect public funds from embezzlement and to enforce accountability among the public officials involved in the administration of public resources.

EACC said if the Bill is enacted as proposed, the amendments will remove essential mechanisms for enforcing accountability for public resources and create legal escape routes for perpetrators of corruption, thus, opening a floodgate of corruption scandals in the country.

"The commission has, on numerous occasions, recommended prosecution based on procurement breaches resulting in convictions for corruption. Courts have regularly pronounced themselves on the issue reinforcing that a flawed process cannot yield a flawless outcome and that parties ought not benefit from irregular transactions," reads memoranda by the EACC.

The AG warned that the proposed amendment is not in line with the anti-corruption policy framework and international obligations that call for strengthening of the legal framework for combating corruption.

"Corruption has been flagged as an existential threat to our socio-economic development by the President and heads of other arms of government, and any legislative proposals clawing back on gains in the fight against corruption should not be adopted by Parliament," argued the AG.

TI-Kenya opposed the Bill arguing that public procurement is one of the most vulnerable sectors to fraud and corruption.

"If passed, the Bill will undermine the progress made in the fight against corruption since the enactment of the Anti-corruption and Economic Crimes Act in 2003 and will pose a serious threat to the principles of competence, justice, and accountability in the management of public resources," said the watchdog.