Anti-graft veto sparks anxiety

By JUMA KWAYERA

Is there a plot to frustrate the creation of a new anti-graft body that may pursue key politicians and lock them out of the next General Election?

This is the question after Mutula Kilonzo’s removal from the Justice Ministry raised doubts about the fate of proposed changes to a draft law that would give more powers to the Independent Ethics and Anti-Corruption Commission. The body is among the vetting agencies that would screen candidates for political office on integrity issues.

MUTULA KILONZO: Before the move to Education from Justice, Mbooni MP was changing Bill to give body powers MPs had stripped. [Photo: File/Standard]

The EACC remains hamstrung by controversy over the appointment of commissioners.

Five months since a parliamentary committee rejected three nominees picked by President Kibaki and Prime Minister Raila Odinga to head the body, the push to roll back graft has lost steam.

Its predecessor, the Kenya Anti-Corruption Commission, had targeted senior politicians and other Government officials implicated in graft, but its disbandment has taken the wind out of the sails of the anti-corruption effort.

Former KACC Director-General PLO Lumumba and four deputies were shown the door last year after MPs made changes to the Bill creating the EACC. Dr Lumumba’s ejection came after his famous declaration regarding five to ten "high voltage files", alluding to investigations targeting four Cabinet ministers and at least 45 heads of parastatals.

As with the law on KACC before it, MPs watered down the Bill, taking away proposed powers to prosecute among other steps to clip the commission’s wings even before establishment. Their argument, that such powers would cause a clash between the EACC and the Director of Public Prosecutions ignored the fact that the Bill had stated the commission would institute criminal proceedings "in consultation with the office of the Secretary of Public Prosecutions".

Before he was moved to the Education Ministry in a recent Cabinet reshuffle, then Justice Minister Mutula Kilonzo had stated he had written to the Kenya Law Reform Commission seeking to amend the EACC Act to give it prosecutorial powers. These were the subjects of one of the more controversial changes to the Bill.

Draft law

The original draft law had also barred State officers from operating bank accounts abroad to clamp down on offshore accounts where looted public funds are stashed. The provision was expunged in a move supported by Cabinet ministers James Orengo and Amos Kimunya. 
The recent Cabinet changes came against the backdrop of discussions on legislation on leadership and integrity, which will give EACC powers to bar any person from seeking elected or appointed office if they have contravened the law.

The apathy to an anti-graft effort is apparent in the way the Executive and the Legislature have dragged their feet in creating a fully operational autonomous institution.

The nomination of former Kenya Revenue Authority commissioner Mumo Matemu and his deputies —Jane Onsongo and Irene Keino — has hit a dead end. The lack of progress since has led to a growing perception Kibaki and Raila are reluctant to open a corruption can of worms ahead of the General Election.

Some politicians have interpreted the removal of Mutula from the Justice docket as an attempt to shield high-profile individuals from criminal prosecution.

Public Accounts Committee (PAC) chairman Boni Khalwale says the Leadership and Integrity Bill Mutula had drafted contained clauses the political elite would be uncomfortable with. Many Cabinet ministers, MPs, Permanent Secretaries, and parastatal heads, among others, would have been knocked out of contention politically had they been vetted under the rules.

Presidential ambitions

"It is important the Ethics and Anti-Corruption Commission is up and running," says Dr Khalwale. "The Bill is supposed to be introduced when Parliament resumes sittings. But I fear the document we are going to see will be weakened."

The passage of the draft Bill in its current form would have far-reaching implications, especially on the presidential ambitions of Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto, who face criminal charges at the International Criminal Court. The Leadership and Integrity Bill is expected to equip the EACC with legal instruments to tackle high-profile corruption.

Since the inception of the Grand Coalition Government, senior Government officials implicated in graft have been cleared of most allegations against them, and resisted calls to quit service. When enacted, the new law is supposed to address wealth declaration, transparency in public procurement, forfeiture of illegally acquired property, and money laundering through punitive legislation. But political patronage and interests in the drafting of the anti-graft laws are cited as hefty impediments to ending impunity.

Fisheries Minister Amason Jefa Kingi blames the sluggish approach to forming the EACC on ethnicity.

"The manner in which the names were brought to Parliament for approval had ethnic overtones," says Kingi. "It suggests we have a long way to go in the fight against corruption."

Questions have been raised, though, about the calibre of investigations that cleared senior officials in the Prime Minister’s office implicated in a maize importation scandal, or former Education Minister Sam Ongeri and former PS Karega Mutahi over fraud in the Free Primary Education programme, among other mega- scandals.

PLO LUMUMBA: Former anti-graft boss said KACC was seeking consent to prosecute four Cabinet ministers, 45 other officials. [Photo: File/Standard]

The latest allegations of fraud involve the banking sector, with Central Bank of Kenya Governor Njuguna Ndung’u accused of abetting the depreciation of the local currency. Chairman of the Parliamentary Committee on Defence and Foreign Affairs Adan Keynan, who led the select committee that investigated possible economic crimes at CBK, says the failure to pass stringent laws to curb the vice and delays in appointments are serving the interests of the corrupt and political elite.

"The issue must be concluded. We need an active and vibrant commission to enforce the law," argues Mr Keynan. The Wajir West MP says Parliament wants to pass the laws to rein in economic saboteurs, but the Executive has been dillydallying.

The discovery of oil in Turkana, in addition to gold deposits in Narok in 2009, and coal in the greater Kitui District, adds impetus to enactment of foolproof laws to prevent drainage of public resources through corruption such as the Goldenberg financial scandal of the 1990s, and the Anglo-Leasing tender scam a decade later.

Integrity Bill

The Leadership and Integrity Bill (2012) has not been enacted, which in effect means Chapter Six of the new Constitution cannot be operationalised. The chapter is critical in stemming economic crimes, the bane of Kenyan politics. The spirit of the Article is in public office appointments that have seen ministers, Permanent Secretaries, State corporations chief executives, and MPs decline calls to resign when their reputations are called into question.

Lumumba said the KACC is forwarding five to 10 files to the Attorney General seeking consent to prosecute high-level Government officials. "KACC is forwarding five to ten ‘high-voltage’ files to the Attorney General within two to three weeks. They involved four Cabinet Ministers," he said. But he was ejected from Integrity Centre before the public could know the outcome of the investigations.