Proposed Biennial Declaration, an Anti Corruption Tragedy
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September 2006 Adili 82 PROPOSED BIENNIAL DECLARATION, AN ANTI CORRUPTION TRAGEDY The Statute Law (Miscellaneous theory behind the amendments. Amendments) Bill, 2006 proposed changes to the Public Officers Ethics In your opinion as a shadow Jus- Act 2003, which now requires wealth tice Minister, what do you think declaration forms to be submitted the government hopes to achieve every two years instead of annually, when the amendment pass? what is your observation? Changing the exercise to biennial The method of amending laws means that public servants will de- through Statutes Law (Miscella- clare their wealth twice in five neous Amendment) Bill, is ex- years. This suggests that the inten- tremely dangerous, and more often tion is to allow public servants to it is used mischievously to sneak in collect wealth in the first year: then How effective has the Act been laws that escape the attention of the hide the ill-gotten wealth overseas since inception in 2003? lawmakers and the public. Changing or even passing it on to friends or the duration for wealth declaration dummy companies. So, at the end I am afraid; the law has not been forms from one to two years is mis- of the second year public officers effective at all. If it had, by now we chievous, and I take great exception declare status quo in the forms. would have seen people ar- to this. raigned in courts, charged and When you are out to loot your convicted under its elaborate pro- When we drafted and passed the country you do not require two visions. Already, you can see those Public Officer Ethics Act in May 2003, years: one year is enough, and mentioned in Anglo Leasing we designed it in a way to echo the therefore this was a very important scam like my learned friend theme of zero tolerance, by allow- safeguard for protecting the Kiraitu Murungi are on war path ing public officers to file wealth dec- Kenyan taxpayer against merce- campaigning for President larations annually. Two years down naries and marauders who want Kibaki’s re-election. It is un- the line, the government is finding to use their offices for their own likely that the President will al- it impossible to sustain the momen- gain. You can imagine the window low his very worthy lieutenants to tum to fight corruption; a confirma- that is going to be created for cor- be arrested and prosecuted. tion that it has lost the war on graft. ruption should this amendment Sneaking in amendments to sec- pass. This amendment will under- tions (26) of the Act, which changes mine the very concept of the law You can imagine the win- the word annually to biennially that was much believed to be a tool dow that is going to be through the bill that seeks to amend to fight rampant corruption prac- created for corruption thirty other statutes; makes it impos- ticed by public officers in govern- should this amendment sible for busy MPs and the public to ment. pass. understand, and follow the legal 1 PROPOSED BIENNIAL DECLARATION OF WEALTH contd... You have also seen the fiasco at the Kenya Anti As a way of transparency do you think the Corruption Commission (KACC), where the third government should let the wealth declaration form ranked officer Mr Hussein Were, was shacked in be accessible to public? unclear circumstances: he is the chief forensic in- vestigator and The government has created bureaucracy in this pro- now he is being cess. Section 30(1) of the amendment states denied the oppor- that, “the content of a declaration or clari- tunity to investi- fication under this act shall be accessible The Act should be extended to cover to any member of the public upon appli- gate and interro- wider areas of public expenditure if the fight gate. I do not have cation to the responsible Commission in any personal against corruption is to be achieved....the the prescribed manner”. And also “no in- grudge against scope of the Act to cover CDF, the Kenya formation obtained pursuant to subsec- anybody in gov- Roads Board funds and LATF tion (1) shall be published or in any way ernment, but all made public except with the prior author- who were men- ity of the responsible Commission.” Look- tioned in John Githongo dossier, and are public ser- ing at that! they are hoodwinking Kenyans by pretend- vants must allow to be interrogated by the chief fo- ing that wealth declaration forms will be made public. rensic officers of KACC. In the case of MPs, they will go through a Parliamen- My view is that the Act is not working. A good ex- tary Service Commission (PSC), whom one may not ample is the recent by-elections where government get a response from. The amendment also states that ministers openly used government resources, mili- one cannot publish the information without any writ- tary choppers and public officers to campaign in total ten authority of the responsible Commission. This is a violation of Public Officers Ethics Act: nobody has been claw back provision that serves no value. It would have arrested. Therefore, it suggests to me that the law is been sensible if the amendment said the wealth dec- purely a window dressing created by the current ad- larations forms will be posted on websites of each Com- ministration to satisfy donors and development part- mission so that the public can access it. ners. Can Kenyans go beyond wealth Declaration forms as Does the law give provisions to investigations on how anti-corruption strategy? wealth was acquired? And how is the government dealing with vague declarations? Kenyans cannot go beyond this because of dynasties and political alliances that are being formulated each There are sufficient mechanisms in the Public Offic- day. Although the proposed amendment to section ers Ethics Act that deal with vague declarations. The (30) opens a window for anti-corruption agencies to Act requires public officers to declare their assets and access wealth forms of individuals; nobody has the liabilities as well as those held by their spouses and nerve to investigate them because of obvious conflict children. Indeed, elaborate provisions guiding inves- of interest in the concerned bodies. .I feel vindicated tigations as to how the wealth was acquired is in our on the position that I have taken and my feeling is that laws, but again, lack of political will to enforce it has KACC will not be courageous enough to investigate hindered investigations. and prosecute for obvious reasons. We can go beyond these forms if we are genuine in our desire to fight The courts have also contributed significantly to the corruption. blockage of investigations on how wealth is acquired. e.g the court of appeal recently blocked the KACC In Uganda, President Yoweri Museveni introduced an from compelling Dr Chris Murungaru to field the element of transparency where he and his cabinet de- commission with his wealth declarations forms. clared their wealth publicly. Kenya does not have the will to do so. No country can completely eliminate cor- In my view, this is a highly complex thing that is done ruption, but what matters are the actions that are taken to protect political elites as opposed to the public cof- against those caught in corruption. Each country should fers from being looted. One wonders, why, despite therefore strive to establish pragmatic mechanisms elaborate laws in place no one has been arrested and to decisively deal with corruption and not just hav- arraigned in a court to face prosecution on corrup- ing good laws or filling forms. tion. We should let the due process of law take its course. We therefore need to change rules in the The requirement that we fill forms every two years constitutional reforms, appoint more judges and en- if the amendment is carried by parliament will be force the provisions of the law. a waste of time. Kenyans must demand concrete commitment to fight graft by putting pressure on the government to prosecute the corrupt and implement the law. 2 Experts have said the bill is too wide and may Development Fund (CDF), the Kenya Roads not achieve its intention, do you think it should Board funds and the Local Authorities Transfer be narrowed down to be specific and to the Fund (LATF) among other areas in both public point? and private sectors. The bill is not wide enough. The net required to rein in corruption must be widened to catch What message do you have for Kenyans in re- sharks and fish. The Act should be extended to gard to this issue? cover wider areas of public expenditure if the We have all agreed that it is totally wrong to fight against corruption is to be achieved. I would preside over corruption, and I urge you to speak have preferred amendments to enlarge the to your leaders to remove daylight political scope of the Act to cover the Constituencies fraud, robbery and plunder of resources. WEALTH DECLARATION IN KENYA Adapted from Wealth Declaration in East Africa By Brian Cooksey, Personal Active Member, Transparency International, 2003 Public Officer Ethics Bill was tabled before parlia- service. According to paragraph 32 of the Act: A‘ ment in April 2002, during the last year of the Moi person who fails to submit a declaration or clarifica- regime, but did not become the Public Officer Eth- tion as required under this Part or who submits, in ics Act until May 2003. The lengthy parliamentary such a declaration or clarification, information that debate surrounding the Bill during March-April he knows, or ought to know, is false or misleading, is 2003 focused on the issue of public declaration of guilty of an offence and is liable, on conviction, to a assets.