The National Assembly recently passed amendments to the Ethics and Anti-Corruption Commission (EACC) Act providing for the vacation from office of the EACC Secretary and his Deputy and recruitment of the EACC Commissioners to be directly conducted by the Public Service Commission, among other proposals.
The National Assembly’s efforts to restructure the legal and institutional framework of anti-corruption in Kenya are laudable but the constitutional validity of some proposed clauses contained in the EACC (Amendment) Bill 2015 is in doubt.
Similarly, the impact of some of the proposals on the management of human resources and public affairs generally would be negative and far-reaching. Some of the amendments are an affront to the principles of good governance.
The approach of using an ad hoc select panel to recruit the commissioners has a known history in Kenya and was adopted for a good reason.
It was meant to ensure that commissioners are recruited by an independent body to safeguard their own independence, both in reality and perception.
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When this approach was first mooted, the Public Service Commission was still in existence. Recruitment of the EACC commissioners through the PSC would potentially undermine their independence since the PSC is among the bodies subject to investigations by the EACC.
Recruitment of the commissioners should still be conducted by an ad hoc select panel for the same reasons that first informed this approach.
A select panel comprising the membership of various and relevant actors would go a long way in infusing diversity, objectivity and credibility in the recruitment process.
The amendment to have the offices of the Secretary and Deputy Secretary to the commission become vacant upon the commencement of the Act terminates the terms of service of the incumbent in a non-procedural manner.
This is in breach of Section 17 of the Principal Act which clearly stipulates the grounds on which the Secretary may be removed from office. The law further requires that where the question of removal from office arises, the Commission shall inform the Secretary in writing of the reasons for the intended removal and shall accord him/her an opportunity to respond, in line with the principles of fair administrative justice.
The question of whether or not the CEO and his Deputy should continue serving should be left to the yet-to-be-appointed EACC Commissioners as they are the ones who are legally mandated to make such decisions.
The National Assembly’s mandate is to legislate and provide oversight of the Commissioners and not the secretariat; sacking the Secretary and his Deputy in the manner proposed is an abuse of Parliament’s legislative authority that will set a bad precedent in the management of public affairs.
The proposed increase in the number of commissioners from three to five is however laudable as this will remedy the question of constitutionality raised each time the number of commissioners is below the minimum of three set by the Constitution.
The proposal to have the commissioners serve on a part-time basis has the potential to instil the practice of good governance that respects the legal competencies of the commissioners and the secretary.
The National Assembly, having enacted the amendment bill, has done its part.
The ball is squarely in the President’s court.
The President should reject the offending provisions and return the Bill to the National Assembly for reconsideration.
Hopefully, members of the National Assembly will do the right thing in respecting legal competencies of other office holders and the Constitution of Kenya.
