By SAMUEL SIRINGI ssiringi@ke.nationmedia.com
Posted Friday, December 9 2011 at 22:00
Posted Friday, December 9 2011 at 22:00
President Kibaki and Prime Minister Raila Odinga may have broken the law in the appointment of three commissioners to lead the war on corruption.
They nominated the chairman and commissioners of the Ethics and Anti-Corruption Commission (EACC) a week after the deadline.
They also failed to seek a legal extension to allow them to make the nominations after the 14-day deadline set in law.
This has opened the process to legal questions, and effectively derailed the war on corruption.
The selection panel presented the list of nominees to the pair on November 10. They had up to November 25 to pick three commissioners and forward their names to Parliament for approval.
Instead, they picked Mr Mumo Matemu, Ms Irene Keino and Prof Jane Onsongo on December 1.
Outside the law
According to the Ethics and Anti-Corruption Commission Act 2011, the President should have sought an extension through a Gazette notice.
“The President may, by notice in the gazette, extend the period specified in respect of any matter under this section by a period not exceeding 21 days,” the law says.
The selection panel had short-listed Mr Okong’o O’Mogeni, Mr Mumo Matemu and Mrs Sarah Kilemi for the position of chairman.
Although Mr O’Mogeni was ranked first, President Kibaki and Mr Odinga settled on Mr Matemu, with Prof Onsongo and Ms Keino as his deputies.
Mr Matemu is a former Kenya Revenue Authority Commissioner in charge of support services, while Prof Onsongo is a former assistant director at the defunct Kenya Anti-Corruption Commission (Kacc).
Ms Keino was deputy chairperson of Kacc’s Advisory Board. The names were forwarded to the parliamentary Legal Affairs Committee on December 1 for vetting.
On Friday, committee member George Nyamweya said they had not discussed the list.
“It isn’t a subject I can comment on, but if it is not properly before us, we will decide when we start the process. We haven’t yet addressed ourselves as to whether the rules were complied with or not,” Mr Nyamweya said.
But the chairman of Transparency International-Kenya chapter, Dr Richard Leakey, termed the whole process a disgrace.
“We cannot have a matter this serious messed up like this,” he said.
Serious problem
The former Civil Service head said President Kibaki and Mr Odinga were to blame for the delay.
“It is very worrying that we are not able to have in place officials to help fight corruption that is a serious problem in Kenya,” he said in a telephone interview.
The delays have thrown the commission into a leadership crisis after the 90-day period in office of the advisory board expired on December 5.
The Saturday Nation established the O’Mogeni-led board quit office on Monday, leaving the commission in a shambles.
“I cannot say I am in charge since I have no letter extending our term. I have written to the government explaining the circumstances,” Mr O’Mogeni said.
Ms Jane Muthaura, the principal officer finance and administration, was recently appointed by Head of Public Service Francis Muthaura to act as the head.
The board had, on November 22, written to Justice Minister Mutula Kilonzo and Attorney General Githu Muigai warning the members will quit office on December 5 upon expiry of their term.
On Friday, Mr O’Mogeni declined to discuss the implication of the eladership crisis at the agency. But Prof Muigai, played down the concerns.
“There is no gap, no lacuna (empty space in the law),” he said, adding that the commission will not cease to exist because of the delay in appointing the members.
He said the new commissioners will take office soon, adding that steps will be taken to address the failure (by nominating authorities) to act within the set deadline.
A decade ago, Mr John Harun Mwau tenure as head of the agency was cut short by the court on grounds that he was appointed illegitimately.
The same fate could befall the Matemu-led team, since the principals missed key timelines in picking them.
Saturday Nation independently established that the board’s absence may have exposed evidence on mega corruption scandals to possible interference.
The commission is currently investigating 11 major corruption cases worth more than Sh100 billion.
The latest was the Sh4 billion free learning scandal referred to the commission by Director of Public Prosecutions Keriako Tobiko last month.
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