The suspension or stepping aside of ministers is unconstitutional

By OKIYA OMTATA OKOITI
Posted Friday, October 29 2010 at 15:57

For a long time, most Kenyans have wanted to see the high and mighty succumb crestfallen to public demands that State officials adversely mentioned in corruption scandals, or charged with corruption in courts of law, promptly vacate office to facilitate investigations.

Such images are good for the general war on corruption as they show that the tide is turning, underscoring the fact that nobody is untouchable.
Nonetheless, we must not flout the law in our war on corruption. Ignoring the law will set bad precedents.

That is why we must ask whether our laws give the President the power to suspend a minister, or allow a minister to step aside.

Under Article 16(3)(a) of the old Constitution, the President has no powers to suspend a minister; he can only hire or fire. And a minister, too, has no legal basis for stepping aside; he can only resign.

Under Article 152(5) of the new Constitution, a Cabinet Secretary (the equivalent of today’s minister) cannot step aside, and the President has the power to dismiss one of his own volition or if required to do so by a resolution of the National Assembly.

Article 152 (6) states: “A member of the National Assembly, supported by at least one-quarter of all the members of the Assembly, may propose a motion requiring the President to dismiss a Cabinet Secretary — (a) on the ground of a gross violation of a provision of this Constitution or of any other law; (b) where there are serious reasons for believing that the Cabinet Secretary has committed a crime under national or international law; or (c) for gross misconduct.”

I posit that both the suspension and the stepping aside of ministers are unconstitutional. The Constitution demands high integrity of our ministers, but it also provides how those who fail the smell test should be dealt with.

It is futile to undermine the law in the name of enforcing it. The President has the power only to fire errant ministers, not to suspend them; and those culpable can resign, but they cannot step aside.

We must also correct the misconception getting entrenched that the new Constitution requires those charged in court, or adversely mentioned in corruption, to step aside until they are cleared.

It is sub-section 62(1) of the Anti-Corruption and Economic Crimes Act, 2003, which states: “A public officer who is charged with corruption or economic crime shall be suspended, at half pay, with effect from the date of the charge.”

But, recognising the supremacy of the Constitution, sub-section 62(6) qualifies this by stating that, “This section does not apply with respect to an office if the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated.”

Sub-section 63(4) grants similar exemption even when the public officer is convicted in court.

The Act exempts Constitutional office holders like ministers and MPs from the blanket requirement to ‘step aside’.

The implications of a minister being suspended or stepping aside are dire: does it mean the one suspended or who steps aside is half in Cabinet and other half on the backbench?

What happens to constituents when their representative is placed in limbo?

In our desperation to root out corruption, there is the danger we might see anything that looks like efforts against the evil, including substandard ones that lower the bar, as an ideal.

We cannot fight impunity with reverse impunity. To stop impunity, we must do things right. The use of illegal methods is no substitute to developing the sophistication required to win the very complicated war against corruption within the confines of the law.

omtatah@safariweb.com