- Changes provide that any Kenyan can seek a court order to invalidate one's ascent to public or state office.
- EACC would only be required to obtain a court order to sanction the suspension of state officers charged with corruption-related offences.
Image: PSCU
A new law that could allow citizens to block graft suspects from holding public office has been tabled in Parliament.
The law could open a floodgate as the August 9 vote beckons.
The Statute Law (Miscellaneous) Amendment Bill 2022 is tightening the Leadership and Integrity Act, 2012 that MPs watered down, soon after the promulgation of the 2010 Constitution.
The bill sponsored by Majority Leader Amos Kimunya provides that any person may move to the High Court to invalidate the appointment of, or bar from assuming office, persons with integrity questions.
“The High Court may upon application by any person, declare the assumption of office by a state officer to be invalid, for want of executing a commitment to the specific leadership and integrity code,” the bill reads.
State officers here include deputy president, governors, MPs, judges and holders of independent offices.
The bill comes only days after a lobby group named 25 politicians they believe should be barred from the forthcoming election on integrity grounds.
The aspirants have been red-carded over the varied corruption and criminal cases they are facing in court.
Anti-graft agencies have also maintained that such politicians are not fit to seek or hold public office.
DPP Noordin Haji and EACC’s Twalib Mbarak have differed with the Independent Electoral and Boundaries Commission over the call to bar the said politicians from the August 9 election.
The anti-graft agency bosses decried loopholes in the law, which have enabled persons with questionable integrity assume office.
“For instance, in the case of MPs, if you try to stop them, they refer you to Article 99 of the Constitution,” Mbarak said.
Among those red-flagged include governors facing corruption charges, MPs accused of forging academic papers and others facing criminal charges ranging from forgery to attempted murder.
Apart from changes to the LIA, the Statutes Law (Miscellaneous Amendments) Bill, 2022, seeks to amend a number of provisions aimed at bolstering the fight against graft.
Among them is the proposal to expunge the law that shields some state officers from stepping aside when charged with corruption.
The government has asked Parliament to delete Section 62 (6) of the Anti-Corruption and Economic Crimes Act, 2003 – a law that protects elected leaders and independent office holders from stepping aside when charged with graft.
At the moment, it “does not apply with respect to an office where the Constitution limits or provides for the grounds upon which a holder of the office may be removed.”
But in the proposed law, the Ethics and Anti-Corruption Commission would only be required to obtain a court order to sanction the suspension of such officers.
Such officers would be barred from accessing offices and stopped from exercising the powers of that office, including decision making, voting, and supervising staff.
“Notwithstanding the provisions of any other law where a state officer is under investigation for or has been charged with corruption or economic crime, the commission may by an ex parte application in the High Court, seek for an order barring the officer from accessing his or her office,” the bill states.
The bill says the rule would apply where the “commission upon preliminary investigations has established grounds to reasonably suspect that the public or state officer is likely to interfere with investigations.”
Officers would be barred from office if there is a fear their continued stay would enable them to conceal, alter, destroy, or remove records, documents or other evidence.
A suspension would also follow if it is believed an officer would intimidate, threaten or interfere with witnesses or investigations.
In the proposed changes, the EACC would be required to verify the suitability of candidates seeking to hold public office and make recommendations to the recruiting entity.
“Where a public entity is recruiting staff, it shall within seven days after short-listing candidates for any position, submit the list of all shortlisted candidates to the EACC for integrity suitability verification.
“The commission shall upon receipt of the list of shortlisted candidates, verify the information regarding them and make recommendations to the public entity on their integrity suitability,” the bill reads.
The bill seeks to provide that the commission may “consider any other information with respect to the integrity suitability of the applicant.”
“The recruiting entity shall consider the recommendations on the integrity suitability of the candidates in making appointment decisions,” the bill says.
The bill, if approved, would also see photographs taken by phones and stored digitally admitted in court, as evidence in what may be a game-changer in prosecuting bribery allegations.
It defines a photograph as “an image created by light falling on a light-sensitive surface, either photographic film or an electronic medium and made visible and permanent by chemical treatment or stored digitally.”
(Edited by Bilha Makokha)