The dust on the appointment of Dr Ben Chumo has finally settled, with the adoption by the National Assembly of the report of the Finance Committee recommending his rejection for the appointment to the chair of the Salaries and Remuneration Commission (SRC). This decision by the National Assembly was unlikely but laudable. It is a step in the right direction in so far as the enforcement of Chapter Six of the Constitution on Leadership and Integrity is concerned.
At the core of Chumo’s failed appointment was the integrity standard expected of public officers. Chapter Six seeks to ensure that those entrusted with the management of public affairs and resources are persons of good character, probity and uprightness. Unfortunately, as soon as the Constitution was promulgated, there was a campaign to systematically undermine it through failed enforcement and lack of compliance.
Chumo’s failed appointment brings to the fore a number of issues that we should settle once and for all. Having made the nomination, why didn’t the President withdraw the name of Chumo after the nominee was charged in court? Why did Parliament, knowing too well that the nominee had been charged in court not decline to vet him? To flip the question, why did Dr Chumo, having been charged in court with economic crimes not withdraw from the vetting and the appointment process until he was cleared? Why is it that different requirements of integrity are applied to elected officers?
The first question regarding the President’s nomination while he ought to have known the nominee was under investigations and could be incapacitated by criminal charges is difficult to answer. Only the President and our criminal investigation and perhaps state intelligence agencies can answer this. On the face of it, one can presume the President was not in the know.
Could Parliament have refused to vet the nominee after becoming aware of the criminal charges facing him? It appears not. The relevant sections of the law, both the Salaries and Remuneration Commission Act and the Public Appointments (Parliamentary Approval) Act, are couched in mandatory terms. Parliament was therefore bound to consider and vet the nominee. Herein lies the gap that needs to be addressed. Should Parliament engage scarce resources in an academic exercise?
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Should MPs vet even where facts are such that a rejection is the only outcome? Part of the answer is found under section 9 of the Public Appointments (Parliamentary Approval) Act which states that where the National Assembly does not approve or reject a nominee within 14 days, subject to any other written law, the nominee shall be deemed appointed. Parliament then had no option but to vet.
Loophole
Next for consideration is the disparity of standards applied to serving and prospective officers. A loophole exists under the Anti-Corruption and Economic Crimes Act. Section 62 thereof requires that a public officer who has been charged with corruption or economic crimes be suspended at half pay until cleared. The law is silent on officers under recruitment.
Why did Chumo, having been charged with economic crimes subsequent to his nomination not withdraw from the vetting process? This is a personal decision. One would imagine that for one to subject themselves to the process they must believe they had a likelihood of success. Going by our fidelity to Chapter 6, this is not an unlikely presumption. The National Assembly’s rejection of his nomination is a step in the right direction.
It can, however, only be impactful if it is used to firmly establish the principle that no one facing unresolved integrity questions is eligible for appointment to public office. In order to neatly tie the appointment and vetting, we need to amend the law to allow the President to withdraw the names of nominees whose qualification is manifestly untenable, before consideration by Parliament.
It should also be possible to amend the Standing Orders of Parliament to provide for a preliminary treatment of matters whose outcome is obvious. Lastly, the law needs to extend the standard of treatment under article 62 of the Anti-Corruption and Economic Crimes Act to prospective officers as well. This way, we will have moved closer to a framework that allows for the ethos of integrity to guide public service in Kenya and help built an integrity system that Kenyans’ yearned for when constitutionalising ethics and integrity.
-The writer is Executive Director, Transparency International Kenya skimeu@tikenya.org
