The SPECIAL REPORT LAND QUESTION STILL A STICKY ISSUE AS Enhancing governance for all ELECTIONS DRAW NEAR Link — Pages 16 - 17 SEPTEMBER 2012 Issue No. 095 Kshs 40/= Cabinet on the spot over defective leadership Bill Bill protects people seeking state offices from public scrutiny as required by the constitution Dr. Willy Mutunga By FAITH MUIRURI HE Leadership and Integrity Bill as proposed by Mutunga the Cabinet is utterly defective and has failed to Tcapture key areas proposed by the Commission for the Implementation of the Constitution (CIC). thinks out The Cabinet Bill has left out two key provisions from the CIC Bill. Areas of concern include the removal of clauses that provide for the Declaration of Assets, Income and Liability of State offic- of the box to ers and Certificate of Compliance with Chapter Six for persons seeking election or appointment to State office. The bill thus denies Kenyans an opportunity to entrench lead- decongest ership and integrity in Kenya. The Bill has contravened Article 80 (a) of the Constitution which mandates parliament to establish procedures and mecha- courts nisms for the effective administration of integrity. By BOB OMBATI Close scrutiny of the Bill reveals that there are no procedures and mechanisms for the effective administration of Chapter Six. CHIEF Justice, Dr Willy Mutunga, has More significantly, the Bill has failed to provide for specific dis- urged church leaders, clan elders, chiefs, ciplinary procedures for State officers who violate this Chapter or councilors and District Commissioners and breach the Act. to arbitrate land disputes and other petty Further, the Bill has failed to prescribe the penalties that may offenses in their respective area to help be imposed for contravention of this Chapter or the Act as reduce the back log of cases pending in required by Article 80(b) of the Constitution. courts. The bill has also vehemently failed to make Mutunga said that currently such cases explicit references to Article 80(c) of the account for a substantive proportion of the backlog of cases pending in most courts in Constitution which calls for the promotion of the principles the country and thus the need to explore of leadership and integrity. alternative mechanisms to resolve the dis- Another contrast in the putes. “Cases land related disputes should be Bill is the provision that al- resolved at family level to avoid saturat- lows state officers to engage ing courts with numerous cases which take in gainful employment con- long to be heard and determined and ex- trary to Article 77 of the Con- pose litigants to endless suffering,” he said. stitution that stipulates that The CJ noted that the judicial way of State officers shall not par- resolving petty disputes was expensive and ticipate in any other gainful litigants were forced to hire lawyers who employment. charged exorbitant fee in the pursuit for Further, the Bill does not 8 Mr. Eugine Wamalwa: Justice and Constitutional minister. 8 Turn to Page 2, Col. 1 Turn to Page 2 Col. 1 IEBC under spotlight Why law has so far AGRA leads green again over cash for failed to deter sex pests revolution efforts in nomination —Pg. 6 —Pg. 12 Africa —Pg. 25 CIC cries fowl over Finland joins fight Kenyans urged to rise up Also weakening of bills by against poverty in against defilement of new Inside... the Cabinet, MPs —Pg. 8 Western —Pg. 20 constitution —Back Page The Link, September 2012 2 GOVERNANCE from Chapter 15 Commissions. They From page 1 are then will be required to investigate such allegations and take disciplinary require persons seeking State offices Cabinet on the spot over action against such EACC commis- to declare income, assets and liabili- sioner. ties beforehand. Going by Kenya’s history, politics In addition, the Bill does not have and experience this clause is likely to a Declarations of Income, Assets and defective leadership Bill be abused and eventually may dis- Liabilities as was contemplated by gainful employment should be disal- ment to create mechanisms that will from relevant bodies and members of suade the EACC from carrying out CIC Bill and proposed by stakehold- lowed if it results in a State officer assist Kenya elect or select leaders the public. its responsibilities effectively. This ers. It had been proposed that persons suffering a conflict of interest or an based on suitability, personal integrity Bodies such as NSIS, the Kenya clause is an affront on the independ- seeking State Office declare their impairment of judgment. and competence. This requirement is Revenue Authority or the public ence of the Commission and will un- income assets and liabilities to the The CIC Bill contained a far su- found in Chapter Six at Article 73 (2) would have opportunity to submit in- dermine the fight against corruption EACC before taking office so as to en- perior clause on gainful employment. (a) which states that the guiding prin- formation on the said applicants to the and quest for integrity and ethics. sure such persons were in compliance Clause 26 (1) stated that a full-time ciples of leadership and integrity are EACC. The EACC would then ob- Any commissioner investigating with Chapter Six, Article 99(1)(b) and State officer shall not participate in a) selection on the basis of person- jectively verify such information and a corruption claim may find his name 193(1)(b) of the Constitution. These any other gainful employment. al integrity, competence and suitability, determine whether such persons are forwarded to the Cabinet Secretary provisions were to the effect that per- In this section, gainful employ- or election in free and fair elections; potentially able or unable to comply under this Act for an apparent viola- sons seeking State office should meet ment means work a person can pursue The Cabinet Bill was expected to with Chapter Six requirements. tion of Chapter Six. This may there- financial probity, ethical and moral and perform for money or other form establish mechanisms that fulfill this A Certificate of Compliance proc- fore result in parallel processes where requirements. of compensation or remuneration, requirement. The CIC Bill sought to ess should be established to allow vet- the Commission is investigating a The CIC Bill therefore sought to whether on full time or part-time ba- fulfill Article 73(2)(a) requirements ting of any person seeking election or crime or a breach of the Constitution appointment to State office. establish a mechanism to allow any sis, which is inherently incompatible by establishing a Certificate of Com- while the Commissioner is under in- persons seeking State office to open with the responsibilities of the State The Cabinet Bill provides at vestigation in relation to the same pliance with Chapter Six mechanism.. clause 52 for a mechanism aimed at themselves to scrutiny and ensure fi- office or as a result of participating in This mechanism as proposed by the action. This clause should either be disciplining errant members of the deleted or strengthened to enable any nancial integrity. The Cabinet Bill has such employment results in the State CIC required the EACC to issue a EACC whenever disciplinary ques- done away with these provisions and officer suffering an impairment of Certificate of Compliance to any per- clearly outline the alleged violation, tion not of a serious nature arises. This relevant evidence and possibility of a thereby lowering standards for those judgment or a conflict of interest son who is deemed complaint with mechanism allows for any person of hefty fine on the complainant if their seeking State office contrary to public The Cabinet Bill clause 26 is there- Chapter Six of the Constitution. the view that a commissioner of the expectations and the letter and spirit of fore in contravention of the letter and compliant is found to be baseless or an To achieve such a feat it was ex- EACC has committed a violation of abuse of the process. Chapter Six of the Constitution. spirit of Article 77(1) of the Constitu- pected that any person seeking of- Chapter Six report the matter to the This clause should be urgently and Although clause 26 (2) (a) of the tion. The Bill also fails to provide pro- fice would apply to the EACC for a Cabinet Secretary responsible for in- Cabinet Bill states that a full-time seriously reconsidered. The Bill lacks cedures to elect or select leaders based Compliance Certificate. The EACC tegrity matters by way of petition. The disciplinary procedure for breach of State officer shall not participate in on personal integrity, competence and would then publish the names of all Cabinet Secretary can then form an Chapter Six . Clause 40 on Breach any other gainful employment, it ex- suitability persons seeking State office and re- Independent Review Panel made up of the Code fails to provide a disci- empts directorship in a private com- The Constitution mandates Parlia- quest information on their past record of a selection of 5 state officers drawn plinary process following a breach of pany; any investment in a business the Act or Chapter Six of the Consti- undertaking or corporate body which tution. It provides that a State officer does not require active participation who breaches the Code shall face re- of the State officer in the operations of moval or disciplinary procedures as the business undertaking or corporate laid down in the Constitution or any body; or any work which is not cov- other law. If you take Independent Of- ered by the employment Act fices the removal process is only as This proposed clause potentially per Article 251 for serious violation. allows for other gainful employment The Cabinet Bill should have sought in contravention of the Constitution.