By vincent chahale
Does the Ethics and Anti-Corruption Commission have the constitutional mandate to fight corruption? That is debatable, as surprising as it may sound. In a recent discourse, I sought to play the devil’s advocate to argue that the constitutional mandate to prevent corruption is centred elsewhere and not with the EACC. At first it sounded far-fetched even to me but as the argument developed, it horrified all of us when those on the other side of the fence slowly crossed over.
Let us take a moment to examine this. The EACC is a commission established under Article 79 of the Constitution. When the new law came into effect, Article 79 obligated Parliament to establish an Ethics and Anti-Corruption Commission for purposes of ensuring compliance with, and enforcement of Chapter Six of the Constitution which is based on leadership and integrity.
At the same time, Article 243 of the Constitution establishes the National Police Service. The Constitution provides for the objects and functions of the National Police Service vide Article 244 and key among those functions as provided in 244 (b) is to “prevent corruption and promote and practice transparency and accountability.” Therein lays the gist of the argument, which is that the Constitution empowers the National Police Service to be the body to fight corruption. According to the Constitution – despite the fact that EACC is named “anti-corruption” – there is no single function to prevent corruption or fight it that constitutionally is granted to EACC.
EACC as portrayed above is established to ensure compliance with, and enforcement of Chapter 6. Save for the Article establishing the EACC, Chapter 6 contains seven articles, which deal with responsibilities of leadership, oath of office of state officers, conduct of state officers, financial probity of state officers, restrictions on activities of state officers, citizenship and leadership and legislation on leadership. The articles generally deal with matters involving ethics but do not provide for corruption.
The Chapter commences by defining how authority assigned to a state officer is to be exercised in a manner that demonstrates respect for the people and promotes public confidence in the integrity of the office. It goes ahead to provide guiding principles of leadership and integrity which include objectivity and impartiality in decision-making and honesty in the execution of public duties.
Furthermore, it provides for oath taking by state officials and states how state officers should behave whether in public or private so as not to demean the offices they hold. State officers are to surrender any gifts received on a public or official occasion to the state and are cautioned against maintaining bank accounts outside Kenya.
Citizenship is stated as a prerequisite for appointment or election into a state office with the exception of judges and members of commissions. The final articles of Chapter 6 compel Parliament to enact legislation establishing the EACC, and legislation on leadership. The question then is, constitutionally, which body is mandated to fight corruption? Someone can successfully argue that it is the National Police Service. Granted, matters of ethics can presumably be connected to matters of fighting corruption, but where the duty to prevent corruption is squarely and clearly granted to another body by the Constitution, then it would be unconsidered to argue that that duty vests in a body established to implement and enforce ethics in public service.
In truth, the provisions that empower EACC to prevent corruption are found in its enabling statute, the Ethics and Anti-Corruption Act. This is where the mandate dealing with corruption is introduced. The Act is supposed to provide for mechanisms of enforcing the provisions of Chapter 6. The Act, of itself, cannot introduce a mandate that has nothing to do with what has been provided for in Chapter 6, a mandate that is squarely granted by the Constitution to another body.
The provisions in the EACC Act, which give EACC the mandate to prevent corruption, are therefore suspect. These include provisions enabling EACC to develop and promote standards and best practices in anti-corruption, investigate any acts of corruption, foster public support in combating corruption and monitor public bodies to detect corruption.
In my view, all these are functions that are geared towards preventing corruption which is the constitutional duty of the National Police Service. The legal meaning of the word “prevent” does not deviate from its ordinary meaning. It simply means to hinder or preclude; to stop or intercept the approach, access, or performance of a thing. In this case, the thing is corruption. All these functions that the statute grants the EACC are in my view, meant to “prevent corruption and promote and practice transparency and accountability”, a duty squarely given to the National Police Service by the Constitution but, peculiarly, not by the National Police Service Act.
In fact, a look at this Act, which is meant to give effect to the constitutional provisions on the National Police Service – namely Articles 238,239,243,244 and 245 – reveals that none of the functions assigned to the National Police Service (Section 24) or the Administration Police Service (Section 27) is geared towards giving effect to the constitutional function in Article 244 (b) of preventing corruption. Peculiar, isn’t it?
How did we get here?
A while back, I had a conversation on this matter with a legal expert who participated intensely in the drafting of the Constitution. I do not know how factual the information that I got is but I have no reason to doubt him. Earlier drafts of the Constitution had established an anti-corruption body with full powers and functions to fight corruption. It was not lost among the makers of the Constitution that functional independence from the Executive of the body that fights corruption as key. However, many members of the August house (I hope you get the irony) were against the anti-corruption body being a constitutional body for reasons best known to them. This opposition was so vehement that it became a matter that could so easily derail the process by having the baby thrown away with the bath water.
The experts had no choice than to delist the anti-corruption body from the list of constitutional commissions and to remove the provisions that had provided for its establishment and functions.
The experts, however, cleverly introduced it in Chapter 6 but did not list its functions, save for providing that it would be the body to implement Chapter 6. This is unlike the other constitutional commissions whose functions are clearly spelt out. This was meant to appease the legislators so as to at least have the Constitution see the light of day since the process was then at a crucial stage.
It would have been, according to him, so risky to have attributed any function to fight corruption to EACC since the legislators would have rejected the whole document outright. The function was then given to the National Police Service, which was the body in which those opposed to an anti-corruption independent body being constitutionally entrenched and given that mandate, wanted the function to vest.
The only success the experts managed was to have the words anti-corruption maintained with reference to the body the Constitution required parliament to establish in Article 79 but without the function. Moreover, they ensured Article 79 of the commission established a body with the status and powers of a commission under Chapter 15, which in the end made the EACC a constitutional commission. This was thanks to the ignorance of the lawmakers who were satisfied that the anti-corruption body was not listed in Chapter 15. That, according to him, explains the current state of affairs.
Well said and understood, but did it cure the defect of failing to give the anti-corruption body the constitutional mandate to fight corruption? Is it proper for that mandate to be granted by statute when it had been granted by the Constitution to another body?
The situation created is thus a dicey one where we have a body named “anti-corruption” and whose supposed function has been given by the Constitution to another. Dicey, I say, for several reasons. First, in the event a constitutional interpretation is sought on which body has the constitutional mandate to fight corruption, it is likely that the court, if it is bold, may find that the same is vested in the Police Service. That would put the investigations on corruption conducted by the EACC into jeopardy. Investigating corruption is simply one of the ways of preventing corruption. It would be difficult to convince the court that EACC is given that mandate under the Constitution. If the function had not been granted to the NPS, then by interpreting the spirit of the Constitution, one would say it is a function of EACC. In this case, the Constitution expressly gives that function to the NPS.
Secondly, what would happen if the National Police Service, for example demanded from Parliament allocation of finances to do all that pertains to preventing corruption as obligated to it by the Constitution? Would Parliament deny it such allocation on the basis that the function is being carried out by another body in which immense funds have already been allocated? If that is the case, would it be constitutional to deny the body in which the function constitutionally reposes allocation to perform its functions?
Difficult questions these.
These are not hypothetical situations but those that can so easily arise either when a person charged with corruption seeks to circumvent the charge by challenging the jurisdiction of the body that investigated him or when the NPS one day becomes determined to perform its function and demands its pound of the flesh (this, however, is only likely to occur if a lawyer is appointed IG).
Parliament needs to bring certainty by moving to amend the Constitution to vest that function in the EACC. I doubt though that a judge faced with an application challenging EACC’s jurisdiction would want to interpret the Constitution as it is since it would throw the fight against corruption into disarray. A way would have to be found to obviate this, say through interpreting the Constitution in a manner that ‘‘contributes to good governance’’.
This, however does not take away the necessity to put things right. Where I come from, it is said that the messenger’s backbone should not be broken. Please don’t break mine. I am but a bearer of news. I am wholly in support of the work of EACC and I believe that it is the body that should be mandated to prevent corruption. In the meantime, the clock is ticking and time is running out.