Uhuru tightens anti-graft laws in radical changes

President Uhuru Kenyatta is tightening the anti-corruption laws in radical changes that would make it mandatory for all state officers, including the Deputy President, to step aside if charged.

The President is also piling pressure on the Judiciary with a proposed requirement that all graft cases are concluded within two years.

In a Bill tabled in the National Assembly on Tuesday, appointed state officers who are under graft investigations could be forced to step aside for 90 days even before they are charged.

The Statute Law (Miscellaneous Amendment) Bill 2020, sponsored by Majority leader Aden Duale seeks to amend several other laws.

After a rigorous campaign by anti-graft agencies led by the Director of Public Prosecutions Noordin Haji, the government has petitioned Parliament to expunge Section 62(6) of the Anti-Corruption and Economic Crimes Act of 2003.

The section protects elected leaders and independent office holders such as commissioners from easily being forced out of office through graft prosecution.

If the proposed changes are approved, governors charged with corruption would be suspended at half pay with effect from the date of the charge until the conclusion of the case.

This would also apply to the Deputy President.

The only office bearer exempted from the guillotine is the President who is entitled to immunity from any criminal prosecution for the duration of his tenure.

Uhuru has often stated that winning the war against corruption and uniting the country are among the major issues he wants as his legacy.

“It is my hope that I will leave a united and cohesive society, and that we shall have won the war on corruption,” he said early this year.

In July last year, Justice Mumbi Ngugi said the section was unconstitutional but she was only expressing her opinion, known in legal parlance as obita dicta.

“It seems to me that Section 62 (6) apart from obfuscating…are contrary to the constitutional requirements of integrity in governance, are against the national values and principles of governance and principles of leadership and integrity in Chapter Six,” Ngugi said.

In the proposed changes, the government also wants the Judiciary hear and determine all graft cases within two years.

The proposal could rattle the Judiciary coming just days after Chief Justice David Maraga accused Uhuru of being responsible for the operational crisis in the Judiciary by refusing to appoint 41 judges. He also said the President ignored court orders. 

Maraga said there is a massive backlog of cases, especially in the Environment and Land Court.

In fact, the proposed amendments provide that where the case against a suspended public officer or state officer is not concluded in two years, the official can apply to the trial court for reinstatement.

“The court shall hear representations from the Director of Public Prosecutions and EACC before determining the application,” the Bill states in part.

Haji told the Star that this section is retrogressive and his office would oppose it.

“It will have a negative impact on us, once people know that suspending state officers charged with graft will not serve as a deterrent,” he said, adding  improvements being done to existing graft laws would have a double-edged effect.

In what would be a Kenyan first, the bill says anti-graft agencies could covertly move to court to have a suspect forced to step aside for three months to pave way for investigations.

In his last State of the Nation Address, President Kenyatta – in a reference to the former Treasury CS Henry Rotich’s case - said he would not fire anybody before they are charged.

“…where investigations have established grounds to reasonably suspect that the state officer is likely to conceal, alter, destroy, and remove records, documents and other evidence,” thebill reads.

It also cites instances where by their continued stay in office, such persons can intimidate, threaten or interfere with witnesses or interfere with investigations.

In renewed anti-graft efforts, the government is sharpening the Leadership and Integrity Act that was largely watered down by Parliament in the run-up to the 2013 polls.

For instance,the EACC would now be required to thoroughly scrutinise contents of  self-declaration forms of politicians running for office.

This would also apply to job applicants, before they are allowed to run – or be assigned state offices.

“It is to advise Parliament or a selection panel on the suitability of the person for appointment,” the bill’s memo reads.

State officers operating a bank account outside Kenya or failing to submit such account’s annual statement to the EACC will be charged.

“Both offences attract five years imprisonment."

It further proposes that the High Court may invalidate the assumption to office of a state officer who doesn’t sign the Leadership and Integrity Code.

Procurement, cited as the genesis of most corruption cases in government, will also be restricted so that the sum quoted at tender opening is not varied at any stage.

“The tender sum as submitted or read out during the tender opening shall be absolute and final and shall not be subject of correction, revision, or amendment by any person or entity,” the bill reads.

Edited by P.O