By Kevin Motaroki
Archbishop (Retired) Eliud Wabukala finally has the pleasure and pressure of sitting at the helm of the Ethics and Anti-Corruption Commission (EACC). The institution has not had a chairperson for about five months since the resignation of Philip Kinisu owing to public pressure for alleged conflict of interest in relation to the NYS.
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It certainly is a different ball game for the man of cloth who formerly headed the Anglican Church, and it is interesting to see how things will all play out.
Corruption, we all agree, is at catastrophic levels, and it can only be hoped that the new chair is the missing link in the fight against corruption that we have been waiting for, for so along. But history has taught us not to be overly excited; EACC has had a high turnover of chairpersons, consequently interrupting the fight on graft.
Is Wabukala the one?
Unlike his predecessors, Wabukala (right) is a unique pick. He is a decorated man of God, with an impressive (religious) resume that saw him rise to the peak of the Anglican Church, which he headed from April 2009 until his retirement in May last year. That Wabukala opted to seek this appointment at retirement when he should, perhaps, be enjoying his sunset years undertaking lighter duties is rather curious: is he motivated by passion to serve his country, or the pursuit of earthly pleasures (the prestige and perks that come with the office)?
It is doubtful he is the Joshua Kenyans have been waiting for to deliver them to Canaan. It is important to note that Wabukala was the chairperson of National Anti-Corruption Campaign Steering Committee that is responsible for carrying out public education, sensitisation and awareness against corruption. We did not quite feel his impact through this committee; he blew cold, never hot. What has changed today that he now hopes to succeed where, with the undemanding duties of the committee, he tripped himself, fell and rolled over in the dust? How does he plan to turn the lethargy he displayed at NACCSC?
He had an opportunity to re-energise the committee and bring about vibrancy in the fight against corruption. On this premise alone, it is impractical for him to succeed in fighting graft at a substantive level, one that requires law enforcement, penal and administrative sanctions as well as asset recovery. We may need to tame our expectation because harbouring unrealistic expectation is plain stupid.
Besides his complete and profound lack of experience in the job, Wabukala is tired and retired. His energies are spent. His religious credentials notwithstanding, he should be home resting. How does he hope to cope with the demands of the job? With his very ripe age, coupled with zero experience, how will he deal with prowling cartels and an assertive commission Secretariat? How will he implement policies he does not understand?
But Wabukala is not the only reason for a likely dismal performance. A simple appraisal of the prevailing circumstances at EACC provides a glimpse of what ails Kenya’s anti graft body.
One, there is a monumental structural challenge that makes it difficult to govern EACC, thus undermining its effectiveness as an oversight body. The institution had experienced perennial conflicts between the secretariat and the policy arm – commissioners. The secretariat had the final laugh after the Mumo Matemu-led group left office prematurely due to public pressure, and the mode of engaging commissioners changed from full to part time.
As agenda-setters for the Commission, in an environment with rampant corruption, the commissioners would be more effective if they were working on a full-time basis. The many cases of corruption may demand frequent meetings. It may be argued that the secretariat, the technical organ that drives processes, can do all that is required in the absence of commissioners, as they have previously operated without commissioners. However, this would raise challenges regarding corporate governance and constitutionality of the institution. This was, for instance, the case when former cabinet secretary for transport Michael Kamau – whose name was among those forwarded to Parliament over corruption – challenged the action by EACC arguing it was not properly constituted.
Further, the question of where the buck stops is inescapable. Given that the commissioners are part-time, who takes responsibility for failures and credit for success?
Two, there are claims that some EACC officers, including investigators, are subjects of the enemy they are asked to fight, and often receive kickbacks. There is need for an internal rapid corruption risk mapping to position the institution to do its work well.
The new chair is faced with the herculean task of ensuring integrity of employees, including propriety of their employment, as well as securing the independence of the commission. The Constitution provides safeguards against external influence but nothing is impossible. In this regard, suggestions that Wabukala meets with President Uhuru to seek “direction and goodwill” in combating crime is tantamount to ceding autonomy of the commission to the Executive.
Restoring public trust should be a priority. Public confidence on the ability of the Commission to deal with corruption has dwindled, as the agency takes unduly long to resolve cases, as well as real or perceived failure to deal with big fish. For this reason, Parliament has been turned into an investigative agency. Last year, for instance, EACC gave then Devolution Cabinet Secretary Anne Waiguru a clean bill of health in respect to the NYS scandal, and even held a press briefing to communicate the decision to the public. Later, the Commission was forced to re-open the investigation, taking cue from the Nicholas Gumbo-led Public Accounts Committee. The number of cases being taken to court that would have been appropriately dealt with by the anti-graft body – but which did not – point to institutional failure.
A subset of this cumulative effect of inability to precisely deal with graft is withdrawal of donor support, as was the case with Free Primary Education initiative. As well, the Kenya Medical Research Institute scandal – where millions of dollars were lost to leisure travel and ‘staff incentives’ – is still fresh in our minds, and so is the corruption at the Health Ministry, which EACC undertook to finalise within 30 days; this did not happen.