By Ndung'u Wainaina
The Constitution imposed an obligation on the State to establish and maintain an independent body to combat corruption and organized crime. It imposed a pressing duty on the State to set up professional, credible, efficient, effective and independent mechanisms to prevent and root out economic crimes.
This obligation is also obtained from the international law agreements that are binding on the State. However, the Ethics and Anti-Corruption Commission (EACC) that the Government of Kenya has established is a whitewash.
The EACC does not meet the constitutional requirement of adequate independence. The legislation establishing the EACC does not pass constitutional muster. The EACC is insufficiently insulated from political influence in its structure, operations, finances, staffing and functions.
The safeguards are weak and inadequate to save the EACC from a significant risk of political influence and interference. This is well demonstrated in the manner in which the last three commissioners were hounded out of office and the working of current staff.
This fundamentally affects the independence and freedom of EACC to operate without fear of political interference. Despite putting on a brave face, EACC is cosmetically a non-starter. It is set up for political reasons not its core mandate.
The Government is duty bound to ensure that an agency responsible for investigating corruption is sufficiently independent and insulated. Public confidence in EACC has been drained. Not many in Kenya trust EACC to prosecute even those implicated in corruption.
While political will and actionable political commitments are key in the fight against corruption, EACC has to demonstrate its ability to work effectively, efficiently and expeditiously.
EACC has not established itself as a credible, impartial and effective multi-disciplinary agency that professionally investigates and prosecutes organised financial crimes and corruption. It lacks staff with the best competences, expertise and skills especially in areas of policing organised economic crimes, financial intelligence and forensic auditing. It applies the same tired old methods that are outlived by the sophistication of corruption.
We need to build an EACC that has the best training in investigation, financial crime intelligence gathering and drafting competent prosecution charges. Its operational method should be that of integrated analysis/intelligence, investigation and prosecution. The EACC’s advantage is that it is a constitutionally established body with wide amplitude, operational and institutional independence. However, it is politically strangled.
Chapter 6 of the Constitution provides vital legal tools to stem official graft. President Kenyatta’s statement had said nothing new on tackling official corruption.
There are serious weaknesses in management, protection and accountability of public funds. Further, the consequence for stealing public funds is inconsequential. The management of the public purse in the country is by far very poor.
Any institution, which is charged to hold the President and government accountable, must necessarily be independent. Institutions which have been given the mandate to apply checks and balances lack absolute independence to do so because of their control by the Executive.
Despite the national and county treasuries trying to introduce a number of public financial management reforms, the continued fleecing of the public purse is due largely to misplaced priorities when it comes to expenditure and the lack of transparency and accountability in the public finance management system (PFMS).
There is the need for enforcement of the checks and balances in the PFMS to free the accountability institutions from the present state of compromise.
The public financial management system, as it stands, is porous leaving the country’s coffers at the mercy of corrupt public officers. The end situation is that the public purse remains unprotected and exposed to corrupt and undisciplined public office holders to loot.
The efforts at enforcing checks and balances stipulated in the Constitution to forestall financial malfeasance have been minimal. The independence of State institutions that have been tasked to facilitate transparency and openness in the managing, protecting and use of public funds must be enhanced and those institutions held to account for pathetic performance including tough sanctions imposed on them.
The oversight role of Parliament to ensure fiscal discipline through accountability is deeply undermined by excessive political and financial decision-making, the presidency and the tendency by parliamentarians to experience disincentives if they go against the President’s wishes.
This is buttressed by a situation where the top positions in institutions tasked with transparency and judicious use of public funds are constantly threatened, manipulated and attacked.
This is inconsistent with the checks and balances required by a constitutional democracy; and the more the situation remains, the greater likelihood that the key accountability institutions in the country will remain impotent. Moreover, as long as the situation remains, we should stop talking about protecting of public funds because sanctions, which alone could deter public officials from stealing public funds, will never be applied.
NB: This article was published in The Standard Newspaper on December 7, 2017.