The Star (Nairobi)

29 November 2012

Kenya: Judges Put Selection of EACC Chair On Hold

THE appointment of the chairperson of the Ethics and Anti-Corruption Commission will be delayed. The appellate court stopped the process awaiting the ruling of an appeal filed by Mumo Matemu.

This means that Matemu will not assume office as the EACC chair and no one will be appointed to the position until the appeal is determined.

The parties had appeared before Justices Erastus Githinji, Wanjiru Karanja and David Maraga to argue for a stay of the High Court decision pending appeal. They agreed that the status quo be maintained to speeding up the main appeal.

In the appeal, Matemu argues that three High Court judges usurped the powers and functions of two other arms of the government "under the guise of constitutional interpretation".

He further said it was wrong for the court to give itself jurisdiction and measure the sufficiency or otherwise of parliamentary debate on his suitability to be appointed as the EACC chairperson.

Matemu argued that the court had no mandate to examine the merits and the demerits of the decision made by Parliament and the Executive regarding his fitness as the chair of the anti-corruption body.

He said his appeal raises very "fundamental issues regarding the separation of powers between the three arms of the government and the extent to which the High Court can interfere with the decisions legitimately made by the two other arms of the government".

In September, three High Court judges quashed Matemu's appointment saying it was wrong for Parliament and the Executive to overlook integrity issues in the appointment.

In the ruling, Justices Joel Ngugi, Mumbi Ngugi and George Odunga said the two arms of the government failed to discharge their duties when called to investigate whether the process of the recruitment of Matemu met the constitutional requirements.

"It is evident that the appointing authorities gave lip service or no consideration at all to the questions of integrity or suitability to hold office. They failed to ascertain for themselves whether he met integrity or suitability threshold. They did not give due attention to all information that was available and which touched on his integrity and suitability," said the judges.

They declared the appointment unconstitutional adding that the court had established that Matemu faced "unresolved questions about his integrity".

Matemu was accused by the Trusted Society of Human Rights Alliance, a lobby group based in Nakuru that he was involved in several shady deals while working as a legal officer at the Agricultural Finance Corporation resulting to the loss of millions of taxpayers' money. The appeal will be heard in January 2013.

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