Why EACC needs commissioners to realise its mandate

Opinion and Analysis

EACC headquarters in Nairobi. Photo | FILE 

By ANDREW K. TANUI

In Summary

• There is need to amend the Anti-Corruption and Economic Crimes Act.

President Uhuru Kenyatta’s recent decision to suspend the chairman and vice chair of the Ethics and Anti-Corruption Commission (EACC) following a resolution of the National Assembly recommending their removal 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 commission’s secretary and CEO who stated that work is going on at EACC despite the departure of the commissioners. Attorney- General Githu Muigai has also expressed similar legal opinion.

Article 79 of the Constitution of Kenya established the EACC and gives it “the status and powers of a commission under Chapter 15.”
From the provisions of Chapter 15 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 which 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 15 commissions indicates that the commissioners are the ones making decisions and in most cases the ones 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 an incorporated 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 the Act had given all powers to the Director, now amended to the Secretary to the Commission.