By Andrew K. Tanui Apr 29, 2015
The decision by the President to suspend the Chair and Vice Chair of the Ethics and Anti-Corruption Commission (EACC) following the resolution by the National Assembly to forward the petition recommending their removal to the President and the earlier resignation of the other commissioner raises the question as to whether the Commission can operate without commissioners in office.
The Presidency, in suspending the two members of the Commission stated that the “process, in no way hinders the work of the organisation which remains constitutionally established and operational.” This was further explained by the Secretary to the Commission who stated that work is going on at EACC despite the departure of the Commissioners.
Article 79 of the Constitution of Kenya establishes the EACC and gives it “the status and powers of a commission under Chapter Fifteen.”
From the provisions of Chapter Fifteen of the Constitution, a commission consists of at least three, but not more than nine members. My understanding of this provision is that a constitutional commission exists because of the members. This is amplified by Article 252 of the Constitution that provides that each commission shall appoint its staff, which in this case, also includes the Secretary of the Commission. Section 4 of the Ethics and Anti-Corruption Act, 2011 provides for the composition and appointment of the Commission and states that the Commission consists of a chairperson and two other members. The Commission therefore, is the commissioners.
A further look at the operations of the Chapter Fifteen commissions indicates that the commissioners are the ones making decisions and in most cases the once authenticating commission reports and documents on behalf of the commissions.
The problem with EACC is the existence of the Anti-Corruption and Economic Crimes Act (ACECA) 2003, which created the precursor of EACC, the Kenya Anti-Corruption Commission (KACC). The ACECA had provisions for a Director and Staff of the Commission who were responsible for its direction and management. It provided that the Commission and the Director were not subject to the direction or control of any other person or authority, and were accountable only to Parliament. The Kenya Anti-Corruption Advisory Board that existed then was unincorporated body, allowing the Director to exercise all the executive powers.
The amendment of the ACECA to substitute the word “Director,” with the word “Secretary’ through the Statute Law (Miscellaneous Amendments) Act, No. 18 of 2014 is, in my considered opinion, what led to the infighting within the Commission between the Secretary and the commissioners. The Director under the ACECA, as stated earlier, was not subject to direction or control of any other person or authority. This could be the basis that the Presidency, the Attorney General together with the Secretary of EACC were relying upon when assuring Kenyans that the work of the Commission and investigation of corruption and economic crimes would continue despite the departure of all commissioners. It is also worth noting that the EACC anti-corruption related work is premised on the ACECA, which Act had given all powers to the Director, now amended to the Secretary to the Commission.
The ideal amendment should have been to substitute the word “Director” with the word “Commission” and not the word “Secretary”. This could have given the commission, and in this case, the commissioners, the powers to direct and control the operations of the Commission. It is ironical that an appointee of the Commission, the Secretary, is then handed over all the powers to direct and control the operations, notwithstanding the fact that the commission/commissioners, under Article 249(2), are independent and not subject to direction or control by any person or authority.
It is worth noting that one other amendment that had been proposed in the Statute Law (Miscellaneous Amendment) Bill, 2014 but dropped by the National Assembly was introduction of a requirement to have the National Assembly approve by resolution the removal of the Secretary, a function that is currently given to the Commission.
With the departure of the commissioners, my view is that EACC as a constitutional commission established under Article 79 and Chapter Fifteen of the Constitution, is not properly constituted. However, for purposes of Anti-Corruption and Economic Crimes Act, under which the current corruption investigation are being done, the Commission is operational and the departure of the commissioners will not in any way affect its operations.
Going forward, there is need to review the current provisions of the Anti-Corruption and Economic Crimes Act, to accord to the operations of constitutional commissions as envisioned under Chapter Fifteen of the Constitution. Without the amendments, any new appointments to EACC will still be faced with the same challenges the current suspended commissioners faced.