The most common topic in the country irrespective of religious, political, ethnic and social standing is the nauseating state of corruption. So much so that the President in his annual address in August 2015 restated the desire of his administration to fight this scourge without fear or favour. He then proceeded to direct the relevant agencies to take steps to ensure the vice is reigned in.
Unfortunately, the agencies namely the Ethics and Anti-Corruption Commission and the Office of the Directorate of Public Prosecution have botched the corruption purging exercise. These agencies have engaged in a public relations exercise where statistics on the number of people hauled before the courts is paraded as “progress”.
The guiding statutes in the fight against corruption are the Anti-Corruption and Economic Crimes Act 2003 and the Public Procurement and Disposal Act 2005.
The former was enacted in 2003 soon after the Narc government swept into power. Its purpose was and still is to provide for the prevention, investigation and punishment of corruption, economic crime and related offences. It has specific offences such as bribery involving agents, secret inducements for advice, deceiving principal, conflicts of interest, improper benefits to trustees for appointments and bid rigging, etc listed under Part V of the Act.
The Public Procurement and Disposal Act 2005 was enacted to establish procedures for procurement and the disposal of unserviceable, obsolete or surplus stores and equipment by public entities. The Act provides for various offences such as splitting or inflating procurements, inappropriate influence on evaluations, corrupt practice, fraudulent practice, collusion, conflict of interest, breach of confidentiality, obstruction and contravention of orders.
Tellingly, the DPP is yet to move to court under any of these specific offences listed under the aforementioned statutes. Instead, most of the cases are premised on section 45(2)(b) of the Anti-Corruption and Economic Crimes Act of 2003. This section provides that “an officer or person whose functions concern the administration, custody, management, receipt or use of any part of the public revenue or public property is guilty of an offence if the person willfully or carelessly fails to comply with any law or applicable procedures and guidelines relating to the procurement, allocation, sale or disposal of property, tendering of contracts;”
To the layperson nothing may seem remiss but to the discerning the move by the DPP is troubling. The reason is that the section quoted above is a general offences clause that may offend the principle nullum crimen, nulla poena sine lege or the principle of legality. Broadly, the legal maxim is invoked in connection with corollary legislative and interpretive principles compelling criminal statutes to be drafted with precision (the principle of specificity), to be strictly construed without extension by analogy, and to have ambiguities resolved in favour of the accused. The purpose of this principle is to ensure that legislation is specific and predictable so that individuals may reasonably foresee the legal consequences of their actions.
Given the function of criminal law in society, it is also an essential requirement of substantial fairness that the individual must be able to know beforehand whether his acts are liable to punishment. The legality principle is thus an important legitimacy factor of any system of criminal law.
A perusal of section 45(2)(b) does not disclose any specific offence rather a broad-brush condemnation of the breach of “any law or applicable procedures and guidelines”. A fine of Sh1 million or a 10-year jail sentence is the penalty.
Regarding such matters, the United States Supreme Court has stated that vague laws offend several important values. First, because it is assumed that a person is free to steer between lawful and unlawful conduct, laws must give a reasonable opportunity to know what is prohibited, so that he or she may act accordingly. Vague laws may trap the innocent by not providing fair warnings. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, prosecutors and judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications. Indeed, Alexander Hamilton recognised violations of the principle as “the favorite and most formidable instruments of tyranny.
Going back to section 45(2)(b), it means there is no differentiation between in procedural breaches and actual offences. For instance regulation 44 of the Regulations under the Act provides that a tender box shall have two padlocks. If say the tender box has one padlock the responsible public officer may be hauled to court and susceptible to a fine of Sh1 million or a 10-year jail sentence yet the regulations or the primary Act itself does not provide such sanctions!
The Kenyan courts have already pronounced themselves on the issue of the principle of legality in the case of Aids Law Project v Attorney General & 3 others [2015] eKLR.
The court held that section 24 of the HIV and AIDS Prevention and Control Act, No 14 of 2006 did not meet the principle of legality, which is a component of the rule of law. It opined that the section was vague and overbroad, lacked certainty and failed to meet the legal requirement that an offence must be clearly defined in law as one cannot know from the wording of the section what acts and omissions will make him or her liable.
Therefore, the EACC and the DPP should refocus their energies on actual breaches of the law and not procedural matters that can be dealt with administratively by the public entities themselves or the director general of the Public Procurement Oversight Authority.
As it is right now, 90 per cent of individuals charged with purported corruption did not breach any of the above laws that amount to corruption.
A perfect example is former Lands Cabinet Secretary Charity Ngilu who has over time accused the EACC of witch hunt over the Karen land saga. In her case, DPP Keriako Tobiko accepted a recommendation by the anti-corruption commission to prosecute her, not for corruption but for obstructing investigations into the Karen land saga.
Suspended GDC managing director Silas Simiyu was charged over abuse of office and illegal procurement. Simiyu alongside eight of his colleagues were accused of irregularly procuring rig-moving services from Bonfide Clearing and Forwarding in the 2012-13 financial year.
Garissa Governor Nathif Jama was charged over allegations of irregular leasing of ambulances in his county. This is a procedural matter that if I am not wrong is handled exclusively by the tender committee.
Former Chief Registrar of the Judiciary Gladys Boss Shollei has also been charged with irregularly buying a house for the Chief Justice.
The basis for this charge according to EACC is that she allegedly improperly conferred a Sh310 million benefit to Johnson Nduya Muthama Holdings Ltd, the company from which the building in Runda, Nairobi, was bought.
At the same time, she was also recently charged with abuse of office over what EACC termed as questionable procurement deals for construction of court buildings in Mavoko.
While EACC and the DPP were both recommending closure of some files for purported lack of evidence is still a mystery on what constituted such decisions.
In the case of National Treasury Investment Secretary Esther Koimet for instance, EACC cleared her on allegations that during her tenure, she used her office to deprive former employees of the Kenya Railways Corporation houses that had been set aside for purchase under the Tenant Purchase Scheme.
The EACC also upheld its decision that Kenya Trade Network Agency CEO Alex Kabuga be charged on allegations of procurement irregularities and ABUSE OF OFFICE. Kabuga is alleged to have approved air tickets at KENTRADE for Eugene Waluvengo and John Opiyo. EACC recommended that the CEO be charged with abuse of office for authorizing purchase of air ticker for Waluvengo for Sh104, 945.
The DPP however disagreed with the EACC’s recommendation to charge the CEO saying the allegations did not warrant a criminal prosecution. Tobiko instead said the same should be dealt with administratively.
From these few examples, it is rather obvious that EACC’s approach to investigations, is not only full of suspense and hide-and-seek games, but also its piecemeal approach is an exercise of witch-hunt and attention stunt.
The over 20 files that have so far been finalised and handed over to the ODPP revolve around issues to do with systemic problems of the related institutions and no one seems to bother to really redefine corruption!
As Chief Justice Willy Mutunga has said, we need to see the actual beneficiaries of corruption in court and not public servants who have allegedly committed procedural malfeasances.
If not, let the DPP haul to court the Cabinet Secretary and Principal Secretary of the National Treasury for administrative failings. Let there not be sacred cows.
Meanwhile the big fish are drinking expensive single malt whisky as they smoke cigars watching the EACC and DPP bumbling about in their incompetence.
Gladys Boss Shollei is the former
Chief Registrar of the Judiciary.