The Star (Nairobi)

10 November 2012

Kenya: Administrative Justice Team's Role

opinion

It is no accident that efforts to promote transformative leadership, ethics and integrity in public service is fast devolving into contestations on whether or not it is within the mandate of the Commission on Administrative Justice (CAJ), (the Office of the Ombudsman)and other constitutional commissions and independent offices to vet public servants for elective and appointive offices.

A number of misconceptions and assumptions have informed this debate. In particular, three competing assumptions require urgent attention:

One, that constitutional commissions, particularly the Office of the Ombudsman, and independence offices have no role on ethics and integrity.

Two, that integrity is restricted to Chapter Six of the Constitution of Kenya and three, that the superintendence on integrity is exclusively vested in the Ethics and Anti Corruption Commission (EACC).

The Constitution of Kenya 2012 does not define the term 'integrity'. However, the free online legal dictionary defines integrity, among other things as fairness, fidelity, good faith, high character, honesty, incorruptibility, justness, principle, propriety, rectitude, reputability, responsibility, sound moral principle, strict honesty, trustworthiness, truthfulness, upright moral character, virtue and worthiness.

These are tenets inscribed in various provisions of the Constitution of Kenya 2010, and other statutes including the Leadership and Integrity Act 2011, the Public Officers Ethics Act and the CAJ's constituting Act, the Commission on Administrative Justice Act of 2011, among other statutes.

Article 59 of the Constitution2(h) and Article 8 (d) of the CAJ Act mandates the Commission to "investigate any conduct in state affairs or any act or omission in public administration in any sphere of government, that is alleged or suspected to be prejudicial or improper or to result in any impropriety or prejudice."

Articles 59 2 (i& j) mandates the CAJ to investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct.

Articles 59 (j) mandates the Commission to report on complaints investigated under (h) and (i) and take remedial actions.

In view of this mandate, is it logically coherent to argue that integrity matters are not within the mandate of the CAJ? Is it possible to address impropriety and prejudicial matters without bearing on integrity?

Can one be found to have misbehaved without breaching integrity or is there any improper conduct that does not breach integrity?

To start with, by virtue of Article 3 of the Constitution that obligates every Kenyan to respect, uphold and defend the constitution, any Kenyan citizen can participate in vetting any candidate seeking any public office if they so wish.

Any conduct of a public servant that negates the sovereign powers vested in the people of Kenya in Article 1 of the Constitution, and/or the national values and principles of good governance prescribed in Article 10 of the constitution is tantamount to breach of integrity.

Secondly, the superintendence on integrity matters is not exclusively the onus of the EACC and Chapter Six of the Constitution.

The concept of integrity, as contemplated in the constitution is wide. Integrity concerns a range of issues, from frivolous malpractices, such as unnecessary use of non-official language in the office, or discourtesy, delays and non-response; to multimillion corruption matters.

Arguably, the EACC may assume the superintendent mandate to ensure compliance with, and enforcement of the said provisions as per Article 79 of constitution.

But this can only happen if Article 79 is mistakenly invoked in exclusion of Articles 249 (1) that bestows superintendence of constitutional matters on constitutional Commissions and independent offices; and Article that 80 (b),which also empowers any relevant institutions to enforce compliance on integrity matters in respect of their mandates.

Specifically, Articles 249, 1 (a-c) mandates the commissions and independent offices to protect the sovereignty of the people, secure the observance by all state organs of democratic values and principles; and promote constitutionalism. Article 80 (b) on the other hand, mandates parliament to enact enabling legislations prescribing penalties that may be imposed on contravention of ethics and integrity provisions by public officers.

By so doing, the constitution expands superintendence on integrity beyond the Ethics and Anti-corruption Commission to include other institutions including the Commission on Administrative Justice among other constitutional commissions.

These institutions can therefore, without fear or favour use the information in their black books to assist the IEBC to determine illegibility of any candidates.

Thirdly, while the supremacy of the Constitution cannot be gainsaid, we need to take cognizance of enabling statutes such as the Leadership and Integrity Act, the CAJ Act of 2011 and Public Officers Ethics Act (POEA) that pre-dates the Constitution.

Provisions in these statutes appreciate the encomium role that such statutes play in facilitating the effective implementation of constitutional principles with regard to ethics and integrity.

Finally, it is important to clarify that the proposed Joint Vetting Approach comprising of the EACC, CAJ and the DPP was a voluntary process whose purpose was to coordinate vetting.

The three tier vetting process mandates the three bodies to develop a framework for vetting as well as compile the list of those deemed unfit, taking cognizance of the principles of natural justice.

The list would be forwarded to the IEBC for a final determination. The IEBC can adopt the list, disregard or vary it. The Judiciary is the last tier for any individual seeking recourse.

Endorsed by a number of constitutional bodies, the process allows members to fall back to its core mandate and still proceed to submit their lists to IEBC should members back out of their commitment.

The constitutional bodies take-up the vetting role in respect to matters historically within their mandate, and cases/issues that they are already dealing with.

Suffice it to say that this precludes matters pending in courts, including the International Criminal Court (ICC) issue, as these institutions do not handle matters already in the judicial arena.

Over and above all these, it is practically impossible for these institutions to individually vet all the 2013 election aspirants. In any case, if one feels that s/he is fit to serve in public office, why would they be afraid of being subjected to scrutiny? Be the judge.

The Author is Vice Chair, Commission on Administrative Justice (CAJ),

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