CONSTITUTIONAL AMENDMENTS

BBI and strengthening the war on graft

The public recognised corruption as the principal threat to the well being of Kenya.

In Summary

•Some of the laws proposed to be amended to achieve this include Article 80 of the Constitution, Leadership and Integrity Act, Anti-Corruption and Economic Crimes Act.

• A proposed amendment to Article 80 requires Parliament to enact legislation establishing mechanisms to facilitate the expeditious investigation, prosecution and trial of cases relating to corruption and integrity

President Uhuru Kenyatta and former Prime Minister Raila Odinga at the new Kisii State Lodge after they received the Building Bridges Initiative (BBI) report on October 21, 2020.
President Uhuru Kenyatta and former Prime Minister Raila Odinga at the new Kisii State Lodge after they received the Building Bridges Initiative (BBI) report on October 21, 2020.
Image: PSCU

One of the most exhaustively discussed topic during the Building Bridges Initiative (BBI) deliberations centred on the war on graft and how to strengthen it.

The public recognised corruption as the principal threat to the existence and well being of Kenya.

The overwhelming perception was that the vice, like advanced cancer, has undermined public trust in our institutions and shattered the hopes, dreams and aspirations of entire generations of Kenyans.

 

Among proposals made include speedy prosecution and conclusion of cases involving corruption and criminal wastage of public resources; stiffer sentences and punitive fines for all found culpable of corruption, protection of whistleblowers, aggressive recovery of stolen public resources, restricting Public Officers from conducting any business with the Government and full implementation of the Bribery Act in addition to the adoption of measures to prevent and curb corruption in the private sector.

Some of the laws proposed to be amended to achieve this include Article 80 of the Constitution, Leadership and Integrity Act, Anti-Corruption and Economic Crimes Act, the Public Officers Ethics Act, the Controller of Budget Act and the Public Procurement and Asset Disposal Act.

A proposed amendment to Article 80 requires Parliament to enact legislation establishing mechanisms to facilitate the expeditious investigation, prosecution and trial of cases relating to corruption and integrity, so as to achieve speedy disposal of such matters.

This would include statutory requirements to finalize corruption-related cases in an expedited manner unlike now that those cases often take years and even decades to conclude.

An amendment to the Anti-Corruption and Economic Crimes Act makes it a crime to aid, abet or be an accessory to any act of corruption or economic crime and requires anyone with information on corruption or economic crimes to report it to the Commission or face a fine of up to Sh5 million or imprisonment of up to three years.

One of the avenues corrupt public officers use to endear themselves to the public is indiscriminate donations through harambees, of proceeds of corruption in untraceable cash.

Government officials have donated hundreds of millions of shillings to churches and other organized groups that can neither be supported by their salaries nor legitimate businesses often disguised as donations from ‘friends’.

 

Amendments to both the Leadership and Integrity Act and the Public Officers Ethics Act requires that whenever public officers donate money, they must declare their sources and more importantly, that any amount more than fifty thousand shillings must be done electronically.

This will make it easier for investigative agencies to trace the sources of funds and greatly discourage using proceeds of corruption to buy public goodwill.

Convicted violators are penalized with a fine of one million and/or a jail term of one year in addition to being declared unfit to hold public office.

Another avenue that public officers use to blackmail suppliers and members of the public is by forcing them to make contributions to endless harambees.

A proposed amendment to the Public Officers Ethics Act bans this practice unless it is for a course for which the President has gazetted a national disaster and allowed public collection.

A person found guilty will be declared unfit for public office and jailed for a year and/or fined a million shillings.

A major problem in public expenditure is payment for ‘ongoing’ works that are not being undertaken and in some instances, diverting funds requisitioned for payment of contractors to other suppliers leading to stalling of projects and pending bills.

As a result, the country is littered with abandoned projects for which huge amounts of public funds have been spent with nothing to show for them.

BBI proposes to amend the Controller of Budget (CoB) Act to strengthen the oversight role of the CoB to ensure funds requisitioned are applied to the right projects and are commensurate with the quantity and quality of work done.

It stipulates that before approving the withdrawal of funds for an ongoing project, the CoB shall cause an inspection of the project to be carried out in order to ascertain whether funds previously appropriated for the project have been prudently utilized for the intended purpose as per the approved budget.

Furthermore, no additional money shall be released for an on-going project unless the CoB is satisfied that the money previously appropriated for the same project has been applied for the intended purposes.

This provision will also play a major role in significantly reducing pending bills.

A proposed amendment to the Leadership and Integrity Act makes Wealth Declaration an annual requirement and allow members of the public, on the application, to access any Wealth Declaration Form of a State Officer where there is a justifiable reason to do so.

The amendment allows EACC to investigate any state officer whose declaration is suspected to contain unexplained assets and to recover the same.

Also, public officers, their spouses, children, business associates and companies they have interests in are prohibited from participating in a tender for the supply of goods or services to any public entity.

With these proposed amendments, the War on Graft can only be more successful.