Is EACC’s integrity under attack?

The Ethics and Anti-Corruption Commission (EACC) was established to instil fiscal discipline, but, ironically, its operations have been under the spotlight.

Last week CORD leader Raila Odinga trashed EACC’s summons over his claims on Eurobond money, claiming the graft watchdog was toothless.

EACC’s threats to arrest Raila if he failed to present himself were ridiculed by his supporters, and a belated withdrawal of the summons appeared a score against the commission.

The commission claimed Raila had presented “unsubstantiated documents” to back his claims, but not before it was criticised for trying to “intimidate whistleblowers” and acting at the behest of powerful forces.

Yet this was not the first time EACC was facing a credibility crisis.

Eyebrows were raised in March when President Uhuru Kenyatta tabled a list in Parliament implicating more than 100 public officials in graft.

Claims of having been kept in the dark later emerged from some of the then commissioners. When he appeared before the Senate’s Standing Committee on Legal Affairs, CEO Halakhe Waqo admitted to having prepared a confidential report for the President but said he did not know it would be publicised.

Internal wars

But this did not stop critics from questioning why the report had not been handed over to the Director of Public Prosecutions (DPP).

Events following the list’s publication were even more telling. In the same month, Prof Jane Onsongo, a commissioner, resigned over what she claimed was the agency’s inability to fight graft. EACC chair Mumo Matemu and his vice Irene Keino followed suit weeks later, opting to leave office instead of facing a tribunal set up to investigate them.

Months earlier, EACC appeared to be fighting its own internal wars when Waqo revoked the suspension of his deputy Michael Mubea. This was just hours after he (Mubea) had been sent on forced leave by Matemu who was then EACC chair.

So is criticism of the anti-graft agency justified? What is it about anti- graft agencies in the country and their ability to attract controversy?   

To whom is it accountable to and what mechanisms are used to corroborate its findings? Why is it that arrests and arraignment in court of some graft suspects are highly publicised but the outcome of the cases hardly ever attracts similar attention?

The country’s anti-graft agencies have had a chequered history, dating back to the late 1990s when the Kenya Anti-Corruption Authority (KACA) was first set up. It was headed by former Kilome MP John Harun Mwau who quickly fell out with the system after he accused senior government officials of graft.

Mwau was replaced by Justice Aaron Ringera. But he too found himself in trouble when he got senior government officials charged in court with abuse of power. A court order declared the commission unconstitutional, forcing Ringera out in 2000.

He was reappointed to head the agency in 2004 after the commission was reestablished. His successor Prof PLO Lumumba was also run out of office in 2011 when Parliament passed legislation to disband KACA and establish EACC.

But EACC’S establishment wasn’t without controversy. Although Matemu, Onsongo and Keino were approved by Parliament as commissioners, Matemu’s appointment was put on hold for over a year before he eventually took office.

He resigned in May 2015 after the President appointed a tribunal to investigate the conduct of EACC commissioners.

The latest attempt to send EACC executives home was made in July when Parliament passed amendments to the anti-graft law. The proposed legislation was, however, rejected by President Uhuru Kenyatta.

Presently, EACC remains without commissioners as the public awaits the formal appointment of five nominees approved by Parliament on Thursday.

“EACC lacks the fire to genuinely fight corruption. It should be disbanded and replaced by established anti-corruption systems within all government departments,” says lawyer Harun Ndubi.

“We are currently relying on a very powerful executive secretary and deputy who were not appointed through a process of confidence as should be the case when appointing commissioners,” he added.

Last week, the National Assembly approved the nominations of commissioners Philip Kinisu (chairman), Dabar Abdi Maa lim, Paul Mwaniki, Sophia Lepuchirit, and Rose Mghoi Mtambo-Macharia but they will only take office after they are sworn in.

Last week the anti-graft agency said the absence of commissioners does not delegitimise the EACC.

“EACC is anchored in the Constitution and its independence guaranteed like any other constitutional commission. The existence of a vacancy in the body corporate does not imply that EACC ceases to be properly constituted or to exist,” says Waqo. (See separate story).

Magic bullet

Lumumba, a former anti-corruption boss, dismisses those calling for EACC’s disbandment saying it is important for the country to have such an organ.

“We need to have a body that is dedicated to fighting corruption, and constantly pricks the nation’s conscience on these matters. We cannot argue that we should disband the commission simply because we continue to grapple with graft. Just because sin is increasing by the day does not mean we abolish churches,” he says.

Lumumba underlines the need to understand the mandate of the anticorruption authority as well as appreciate the role of politics.

“Political will is the magic bullet. Take the example of President John Magufuli who has done in two months what the country has failed to achieve in 25 years,” he says. “I would advocate strengthening of EACC and other supporting institutions as well as a sustained political will to fight graft. Let the Judiciary crack down hard on a few top people in government found guilty of corruption then have their properties taken away. If this happens, then the public will know corruption does not pay.”

He cites the example of Hong Kong which had one of the most corrupt police forces, a problem addressed by political decisions. Singapore, in the 1960s also had one of the most corrupt governments until more than 100 officials were jailed.

Raila’s legal affairs adviser Paul Mwangi weighs in on the matter. “A commission is essentially referred to as such because it has commissioners. When it doesn’t have them, then it becomes an office. Each commissioner enjoys security of tenure which carries a level of independence that protects the body. Commissioners are therefore central to operations of the body. They are the very essence of it,” he says.

The CEO, Mwangi argues, is an employee of the commission and does not enjoy security of tenure, thus putting to question the commission’s independence. Waqo however argues that decisions to prosecute are made by the DPP on the basis of available evidence.

But Mwangi maintains it is wrong to make the war against graft the preserve of one commission, and faults EACC for allowing itself to get sucked into political games.

“It would be ridiculous for you to go to the police to report a break-in only for the police to ask you to prove the theft. So does one present fingerprints of the thieves or their photos? The same case applies to EACC, an agency with the capacity to investigate demanding proof of Raila’s claims on Eurobond,” he says.

Public property

University of Nairobi’s Prof Karuti Kanyinga believes there is nothing wrong with EACC.

“We have a culture of not respecting public property. It doesn’t matter what institution we have to fight graft until we sort this out,” he says.

Kanyinga argues there has been absolute lack of abiding by Article 10 of the Constitution which is clear on values of governance.

“We must not blame institutions for our failures as a nation and for nurturing a culture of impunity where laws are not enforced. Once we correct this, EACC or any other institution would have an easy time or we may not even need them at all,” he says.