The Constitution of Kenya remains the supreme law of the country.
There have been three significant versions of the constitution, with the most recent redraft being enabled in 2010 replacing the 1963 Independence Constitution.
The draft was presented to the Attorney General of Kenya on April 7, 2010, officially published on May 6, 2010 and was subjected to a referendum on August 4, 2010.
It was approved by 67 per cent of Kenyan voters before its promulgation on August 27, 2010.
Among the gains achieved in the 2010 constitution was the Integrity Chapter well known as Chapter 6.
This chapter allowed for the establishment of an independent ethics commission mandated to monitor compliance with integrity in all government institutions by investigating and making recommendations to the relevant authorities for action.
After the 2010 promulgation, the Ethics and Anti-Corruption Commission (EACC) was established after retired President Mwai Kibaki signed the Ethics and Anti-Corruption Act EACC and replacing the Kenya Anti-Corruption Commission-KACC.
Then Chairman Mumo Matemu was nominated by the Grand Coalition Government principals, President Mwai Kibaki and Prime Minister Raila Odinga in 2012 to head the anti-graft agency alongside commissioners Irene Keino and Prof. Jane Onsongo.
The three later resigned concurrently amid controversy between April and May 2015.
In November 2015, President Uhuru Kenyatta nominated new members to head the agency.
Philip Kinisu was named the commission’s chairperson alongside Dabar Maalim, Paul Gachoka, Sophia Lepuchirit and Rose Macharia as commissioners.
The commission currently under the leadership of Bishop Eliud Wabukhala as Chairman and Twalib Mbarak as CEO has had to endure many accusations among them being the weak link in the fight against corruption.
While some have accused the commission of turning their back on the big fish while hunting the small fish as corruption wrecks the country, others have said the commission has been taken hostage by the same corrupt individuals to cover up for their crimes.
But 10 years later, the Star’s Patrick Vidija had a one on one interview with Commissioner Paul Gachoka to explore ‘a decade’ of the integrity test.
Q: It is now ten years to the date since Kenya promulgated her new Constitution. What progress has been made so far in implementing its Chapter Six?
A: Milestones may be classified as those that are constitutionally mandated and operational. Constitutionally mandated milestones achieved include the enactment of the Ethics and Anti-Corruption Commission Act and the Leadership and Integrity Act within one year and two respectively, from the date of promulgation of the Constitution. The establishment of the Ethics and Anti-Corruption Commission and transition from the now-defunct Kenya Anti-Corruption Commission is another constitutionally mandated milestone.
In terms of operational milestones, the Commission has achieved plenty in the last 10 years.
A total of 258,676 Kenyans have submitted self-declaration forms for integrity vetting. In the same time, the Commission has received 25,596 vetting requests from public institutions at the national level of government.
Another 9,735 vetting requests have been received from public institutions at the county level of government.
381 requests have been received from private entities. All these requests were processed by the Commission and a response provided to the requesting entities.
For the 2017 general elections only, the Commission received a total of 16,182 requests and a report made to IEBC recommending that 87 candidates with unresolved integrity issues be barred.
The Commission has overseen the commitment by 3,903 elected and appointed state officers to specific leadership and integrity codes as they assumed office.
This represents 70 per cent of elected State officers including Cabinet Secretaries, Principal Secretaries, Governors, Deputy Governors, County Executive Officers, Members of County Assemblies and those serving in various Constitutional Commissions and independent offices.
The Commission has approved 565 State and public officers to operate bank accounts outside Kenya and continues to randomly verify that the accounts are operated for the purpose for which approval was given.
The Commission has finalised investigations of over 800 high profile cases including:
Allegations of procurement irregularities in the construction of an office block for the Kenya Maritime Authority at an approximate value of Sh1.8 billion.
The allegations of inflation of construction cost of the Lake Basin Development Authority Mall by Sh1.5 billion.
Irregular procurement of Strategic Food Reserve maize by the Ministry of Agriculture and National Cereals and Produce Board (NCPB) at an estimated cost of Sh11.3 billion.
Corruption related offences involving four current Governors (Samburu, Nairobi, Migori and Busia), three former Governors (Kiambu, Nairobi, Nyandarua) and several senior county officials.
The commission has also successfully traced and recovered public assets valued at approximately Sh19.9 billion belonging to among others the Kenya Meteorological Department, KALRO, University of Nairobi and the now-defunct Nairobi City Council.
In corruption prevention, the Commission has successfully disrupted and consequently averted the possible loss of public funds to the tune of Sh96 billion through proactive investigations.
Q: What, in your opinion, are some of the hurdles towards the realisation of the same?
A: We continue to discover day by day that the legal and regulatory framework for the enforcement of Chapter Six of the Constitution is inadequate. This notwithstanding, the commission continues to endeavour to engage the National Assembly, the Office of the Attorney General and the Kenya Law Reform commission among other actors with a view to law reform to address loopholes as they emerge.
Similarly, the Commission is faced with reluctance by State and public officers to observe their obligations under the Constitution or the various integrity laws. For instance, despite the requirement to submit Declarations of Income Assets and Liabilities (DIALs) popularly known as self-declarations being in place for the last 13 years or so, we are yet to achieve 100 per cent compliance levels.
Also, although the Leadership and Integrity Act requires that all State and public officers operating bank accounts outside Kenya must declare the accounts and seek the Commission’s approval to open or operate them, the commission has only received requests from 565 State and public officers which is a far cry of bank accounts outside Kenya operated by State and public officials, their spouses and children under the age of majority or who are still dependent on the State and public officers.
Q: The Commission has a critical role in integrity vetting and advising IEBC and any recruiting entity on the integrity status of any person seeking to be elected or appointed to a State or Public Office. Are there leaders past or present who are or have been on EACC’s integrity list?
A: The mandate of the Commission as you have aptly described is to advise the IEBC and recruiting agencies on the suitability of a person for election or appointment to a State or public office. In this regard, the commission receives requests from time to time for integrity vetting and the EACC will look through its complaints system, ongoing investigations, matters in Court and records of convictions to identify persons who have unresolved issues as defined by the courts. It is only those with unresolved issues that we would be writing and advising IEBC and other recruitment entities from clearing or recruiting. EACC maintains a database of all this.
Ultimately it is the decision of IEBC or the recruiting entity to nominate or appoint a person or not based on the EACC’s recommendations.
Q: How well or poorly is Kenya ranking in terms of rating on the integrity scale?
A: Transparency International Corruption Perception Index relies on a number of proxy indicators but is still a perception. More intuitive indices such as the African Development Bank index have a more accurate assessment. In terms of our integrity as a Country, we have areas to improve on.
Q: With the many cases of corruption that are being reported every now and then, has Kenya lost its conscience on integrity?
A: This is a broad question that can only best answered by Kenyans or their elective representatives. However, I can speak of the resolve by the Commission to implement its three-pronged strategy of prevention, investigation/law enforcement and asset tracking and recovery.
We intend to enhance our prevention strategies in order to influence attitude change among State and public officers in particular and the Kenyan Society in General.
We intend to enhance investigations and prosecutions against persons who will purposefully or continuously violate Chapter Six and any laws emanating from it.
We also intend to enhance the tracing of assets and asset recovery so that public resources may be restored to its rightful purpose.
Q: What, in your opinion, is Kenya’s future with regards to Chapter Six?
A: There is still a lot of work to be done to achieve the kind of society that is envisioned in Chapter Six of the Constitution.
We are well aware that Rome was not built in a day, but this doesn’t mean that all is lost. In fact, there is plenty to look forward to in terms of the implementation of Chapter Six.
What is important however is that we must all join hands and walk the talk in terms of implementation since we all have a role to play either at personal or institutional levels.
Barring candidates with integrity issues from running for public office is one relevant topic.
Eliminating conflict of interest by passing the proposed legislation and preventing people without requisite qualifications from getting jobs in public service is also an alternative we can explore towards achieving integrity targets as enshrined in the constitution.