Court rules anti-corruption body "illegal"

About 20 corruption suspects, including a cabinet minister, arraigned in the Nairobi courts, no longer face charges. The Kenya Anti-Corruption Authority (KACA), the body which has been investigating and prosecuting cases of corruption is no more.

It was an “illegal” organisation, declared Kenya’s Constitutional Court recently in a controversial ruling which concluded that KACA’s existence was rendered baseless by constitutional irregularities. The court’s three-man bench also ruled that the appointment of a judge - Aaron Ringera - to head KACA was unconstitutional, because taking up the appointment violated his judicial oath.

The plea challenging the legality of KACA had been brought to court by two
civil servants charged with corruption. They tabled a constitutional reference, which the court upheld and ruled that the activities of the organisation were not only illegal and unconstitutional but undermined the prosection powers and authority of both the attorney general and the police commissioner.

The historic ruling was a pleasant surprise for the suspects, but not for some Kenyan leaders, the public and the international community, all of whom had vested great hopes in KACA’s role in ending corruption in the country. A real drive against corruption is a key condition of future IMF funding for the east African nation, once the economic darling of the West.

Parliament has also failed to enact two Bills seen as crucial in demonstrating the government’s commitment to end graft - The Code of Ethics and The Anti-Corruption and Economic Crimes Bills.

International confidence in Kenya’s law enforcement agencies had waned to such an extent that the World Bank and the International Monetary Fund (IMF) were driven to insist on the creation of KACA as one of the conditions for the unfreezing of a US $220 million loan to Kenya.

Kenyan MPs said the court’s decision was demonstrative of the government’s lack of sincerity in fighting corruption, now pervasive at all levels of society. Parliament established KACA in 1997, but failed to notice the flaws and shortcomings in the bill it passed as law bringing the organisation into existence.

An editorial carried by Kenya’s ‘Sunday Nation’ on 31 December 2000 wondered why the attorney general’s chambers had failed to seal the loopholes in the bill before presenting it to parliament. “Oversights are too frequent in legal drafts,” it said. “Kenyans expect a swift correction of these legal blunders,” concluded the editorial.

The Catholic Church and the Supreme Council of Kenyan Muslims (SUPKEM) took issue with the court’s ruling, which they described as having set a bad precedent. They castigated the attorney general for his failure to advise the government correctly on the status of KACA.

KACA has appealed against the ruling, but the move is likely to fail on account of the negligence on the part of the legal draftsmen in preparing the bill and of the legislature for passing it into law.

KACA has been at the centre of controversy ever since its inception.
Its first director, John Mwau, was dismissed for reasons interpreted at the time as relating to his moves towards encroaching on confidential matters pertaining to the finance ministry. A tribunal ruled that Mwau lacked sufficient competence to occupy the post.

From the look of things, the Kenyan leadership across political divide,
has been less than keen to pursue the eradication of corruption. Parliament has rejected a “list of shame” (naming a number of individuals and detailing the acts of corruption alleged against them) tabled before it for ratification and action. Moreover, parliament also threw out the economic crimes bill, the objectives of which were to have complemented KACA’s role.