Why dossier is a statement on friction in Kenya's Ethics and Anti-Corruption Commission

The dossier the President relied on to require public officials suspected of engaging in corruption to step aside is likely to further divide the Ethics and Anti-Corruption Commission.

Analysts also believe the dossier may further muddy anti-corruption waters if suspects challenge the process of its handling and as an already divided commission struggles to beat the 60-day deadline imposed on it to conclusively deal with the cases.

It has since emerged that the dossier was unilaterally submitted to the President by the CEO of the commission Halakhe Waqo who was recently at loggerheads with the commissioners following suspension of his deputy Michael Mabea.

The dossier was received by the President consequent to Executive Order Number 6 issued three weeks ago in which the President required civil servants to report to him directly if they encountered corruption or breach of processes, State House confirmed.

Sources within the commission also confirmed that the commissioners were caught off-guard by the President’s announcement since they had not sanctioned any release of such a report to State House.

“If you listened to the speech (President’s address) you will have heard that the President mentioned the role of the Executive Order in triggering all this. The message is clear that away from the niceties and elegance of procedure, the President will not tolerate corruption in his administration at all costs and it will not matter who is involved,” a State House official in the know said.

In his speech, the President referred to the confidential report as coming from the CEO of the commission. He also validated the views of the CEO that the commission, “especially the secretariat”, is under siege because of the nature of the cases they are currently investigating.

“From the reports I have received, I strongly believe that this (infighting within the commission) is a further attempt to subvert the successful prosecution of the Anglo Leasing cases,” the President said in his State of the Nation address.

A few weeks ago, Commission chair Mumo Matemu suspended the deputy CEO but the CEO overturned the decision in a matter of hours. Almost simultaneously to that saga, a petition was filed in Parliament seeking the removal of Matemu and his deputy Irene Keino.

The petition to remove the pair was largely based on a controversial letter written to the President by Keino and her fellow commissioner Jane Onsogo seeking the removal of Matemu, allegedly on ground of incompetence. Keino and Onsogo later disowned the letter saying they were misled by the commission secretariat.

“We wish to state that the letter was never discussed in the commission meeting and the same was never dispatched by us. The issues raised therein are no longer valid or current. We therefore dissociate ourselves from the said letter and irrevocably recant the sentiments in the said letter atrributable to us,” Keino and Onsogo wrote in a letter addressed to the chairman.

“It’s a comedy of errors of sorts where both the President and the EACC are acting out as whistle-blowers. For who to act is the question since both have power to deal with the issues they are blowing out,” lawyer Harun Ndubi said.

He said the fact that the CEO of an independent commission wrote to the President for help when the matters in question could very well have implicated the President himself is a sign of an incompetent and divided commission unable to work.

Confidential letter

“He ought to have taken the confidential letter as a resignation letter. The CEO is not the spokesman of the commission. He cannot purport to send a report of that magnitude without involvement of the commission,” Ndubi explained.

Lawyer Charles Kanjama says ideally any report to do with corruption ought to be owned by the commission in its entirety. He says the confusion arises from the difference between the statute and the Constitution with regard to role of commissioners.

“The Constitution appeared to envision a commission with executive commissioners but the statute to implement the constitutional provision created a CEO with operational powers. If indeed the current CEO has operational powers then he is the one to communicate.

“But if he is the one to communicate, he should be able to copy the commissioners because they need to be aware and because external relations is, really, a function of the commissioners,” Kanjama said.

He said independence promised in the Constitution is a functional one, not operational. He also said the 60-day “ultimatum” issued by the President to the investigating arms is not really an ultimatum nor is it legally binding.

“It is merely a request since he is asking his ministers to step aside. It is not a command that is legally enforceable but common logic should tell you that the higher in authority a request comes from the greater the effort to comply. I believe it is in good faith,” Kanjama said.

Yesterday, Matemu could not be reached to explain the process of compiling the confidential dossier to the President, the presentation of the same by Waqo and what it means to the unity of the commission if indeed the commissioners were kept in the dark.

High profile cases

However, when he spoke to us on Friday, Matemu was categorical that the Anglo Leasing and other “high-profile” cases are informing the siege on the commission:

“I only wish to reiterate what the President said in his State of the Nation address. He said he strongly believes that what is happening in the commission is, and I quote him, “further attempt to subvert the successful prosecution of the Anglo Leasing cases. That should tell you we are working.”

He added: “Kenyans should ask themselves one question. Why now? And the President has answered it. We were and we still are proceeding very well in execution of our mandate. We want Kenyans to support us like the President has, to pray for us and to help us as we unite against those who wish to divide us. The aim is to make us lose focus. I want to confirm to Kenyans that we remain committed and firm.”

The whistle-blowing act by Waqo, President’s act of tabling the confidential dossier in Parliament and the ongoing in-house investigations at EACC have further raised fresh credibility questions on EACC’s capacity to comprehensively fight graft.

Some people believe the President’s actions on Thursday missed the point because the EACC itself “must be clean” if it has to clean others.

“EACC has not been acting bold enough yet it has the mandate. Why wait for a Presidential directive to act yet you have the mandate? The President should have started by cleaning EACC itself to enable its broom sweep clean,” notes High Court lawyer Titus Bittok, who also lectures at the University of Eldoret.

The EACC’s mandate involves combating and preventing corruption and economic crime through law enforcement, preventive measures, public education and promotion of standards and practices of integrity, ethics and anti-corruption

Time wastage

Ndubi supports this view: “A credible commission is necessary in the first place if the war on corruption has to be won. We must get it right from there otherwise we are wasting time. If one of the officials is sneaking out information to the President behind the backs of others, how can such a commission be expected to undertake the kind of intricate investigations we are talking about?”

The President of the East African Law Society, James Mwamu, says EACC’s mandate and structure was weakened by legislators and that in its current form, it cannot effectively fight corruption.

“The infighting within has also weakened EACC’s ability to investigate and prosecute corruption cases. A few things are not going right and we in legal circles feel the commission is being set up for failure,” Mwamu told The Standard on Sunday on phone from Zanzibar. The Executive Director of the Centre for Legal Aid (Kituo Cha Sheria), lawyer Getrude Angote, says what was being levelled against EACC were allegations which must be proven in law.

“While we demand that the EACC be above board to cultivate and retain the much needed public confidence in fighting corruption, we cannot condemn it without proving allegations of corruption. The rule of law has to prevail,” noted Angote.

Barrack Muluka, a Special Consultant on and advisor on public and media relations, says EACC has the moral authority to fight corruption.

“It’s a clearly constituted commission with a clear mandate. Machinations and conspiracies are being orchestrated against it with the interest of defeating justice. It has happened before to people like PLO Lumumba when they headed the commission,” said Muluka.

Legislator Daniel Maanzo, a lawyer by profession, says Parliament cannot deliberate on the petition before it because the matter was also in court.

“The President asked for the status report of investigations on corruption by EACC and he was given. He decided to bring it to Parliament and in so doing he was perfectly in order,” said Maanzo.