President William Ruto’s administration is seeking to tighten anti-corruption laws that could see state officers, including the DP, step aside when under probe for graft.
A new law seeks to provide that the Ethics and Anti-Corruption Commission may approach the High Court for an order barring graft suspects from accessing their offices when under investigation.
The proposals are contained in the Statute Law (Miscellaneous Amendments) Bill, 2022 - an omnibus bill sponsored by Majority leader Kimani Ichung’wah (Kikuyu MP).
If enacted, state officers, including the deputy president, governors, MPs, judges and holders of independent offices, would be compelled to step aside if charged for graft.
The bill, which is before various House committees, seeks to delete Section 62 (6) of the Anti-Corruption and Economic Crimes Act, 2003, which protects elected leaders and independent officeholders from stepping aside when charged with graft.
Such officers are presently removed only through an elaborate process before a tribunal that is to be formed by the President on the recommendation of MPs.
And unlike the current tradition where suspects step aside mostly after they are charged, the new law seeks that suspension applies to any state officer under investigation.
“Notwithstanding the provisions of any other law, where a state officer is under investigation for or has been charged with corruption or economic crime, the commission may, by an ex parte application in the High Court, seek an order barring the officer from accessing his or her office,” the bill reads.
Such officers, the proposed law adds, would be barred from “exercising the powers of that office, including participating in decision making, voting and supervising staff.”
Graft suspects would thus be at the mercy of the EACC, which would be empowered to bar suspects so they don’t interfere with investigations.
The bill provides that EACC would make the move where it establishes that the state officer is likely to conceal, alter, destroy, or remove records, documents or evidence.
It would also be the case where EACC believes a state officer facing a probe could intimidate, threaten, or interfere with witnesses.
Also set as a ground for seeking such an order would be where it is believed the suspected state officer would interfere with investigations in any manner.
A similar effort was initiated by Ruto’s predecessor Uhuru Kenyatta, who sought to have such officers step aside for 90 days.
This followed a concerted campaign by anti-graft agencies led by DPP Noordin Haji.
Should the new bill be assented to, only President Ruto would be immune to such prosecution.
In July 2019, Justice Mumbi Ngugi expressed her opinion that the immunity granted by the anti-graft law to state officers and independent office holders was unconstitutional.
“Section 62 (6) apart from obfuscating…are contrary to the constitutional requirements of integrity in governance, are against the national values and principles of governance and principles of leadership and integrity in Chapter Six,” she said.
The new bill, in what could be a major boost to the Director of Public Prosecutions, further seeks to have electronic photographs included as evidence in a case.
It proposes changes to the Evidence Act (Cap 80) for the admissibility of pictures taken using mobile phones and other electronic devices.
"'Photograph' means an image created by light falling on a light-sensitive surface, either photographic film or an electronic medium and made visible and permanent by chemical treatment or stored digitally,” the proposed law states.
Ruto troops in Parliament also seek to tighten integrity checks on new appointees.
The Kenya Kwanza side wants the law Leadership and Integrity Act enhanced so Kenyans can bar graft suspects from ascending to office.
EACC would be required to verify the suitability of candidates intending to apply to be appointed to a public entity and to make recommendations to the recruiting entity on the persons’ integrity suitability.
If approved, the High Court on application by any person may be allowed to declare the assumption of office by a state officer to be invalid “for want of executing a commitment to the specific Leadership and Integrity Code”.
“Where a public entity is recruiting staff, it shall, within seven days after shortlisting of candidates for any position for which appointment is considered, submit the list of all the shortlisted candidates to the commission (EACC) for integrity suitability verification,” the proposed law reads.
“In making recommendations [on suitability] the commission may consider any other information with respect to the integrity suitability of the applicant,” the bill reads.
State agencies, the new law suggests, would be under compulsion to act on the recommendations of the anti-graft agency.
“The recruiting entity shall take into account the recommendations on the integrity suitability of the candidates in making appointment decisions,” the bill says.
The bill also brings public entities, private entities, and officers assigned to them under the ambit of anti-bribery laws.
There were concerns about Ruto's appointees to key state offices who were battling various graft cases. A number of cases have collapsed.