The Ethics and Anti-Corruption Commission (EACC) and other stakeholders have opposed the anti-corruption bill proposed by Mbeere North MP Geoffrey Ruku.
Appearing before the National Assembly's Justice and Legal Affairs Committee (JLAC) on Thursday, EACC, the Office of the Attorney General, Office of the Director of Public Prosecutions (ODPP) and Transparency International Kenya (TI-Kenya) made submissions against the bill.
They consider the Anti-Corruption and Economic Crimes (Amendment) Bill, 2023, "dangerous and a backward step in the fight against corruption."
MP Ruku's Bill aims to decriminalise certain aspects of public procurement, property disposal, contract tendering, fund management and expenditure.
It seeks to delete from the law two key corruption offences that exist to protect public funds from mismanagement and to enforce accountability among the public officials involved in the administration of public resources.
The targeted provisions are under section 45(2)(b) and (c) of the Anti-Corruption and Economic Crimes Act, 2003.
Ruku argues that the objective is to "strengthen" the fight against corruption by "removing undue criminalisation of procurement flaws", which in his view could be adequately dealt with through administrative action.
The Bill also seeks to delete from the law an offence arising from the initiation of unplanned projects (with no budget) in the national and county governments.
EACC led by Director of Legal Services and Asset Recovery David Too, told JLAC that the Bill potentially mutilates the legal framework for the fight against corruption.
Too warned that if enacted as proposed, the amendments will remove essential mechanisms for enforcing accountability for public resources.
He added that they will create legal escape routes for perpetrators of corruption thus opening a floodgate of corruption scandals in the country.
Further, the Committee was informed that Section 42(2)(a) of the ACECA is used in every step of managing and punishing breaches in procurement procedures from the investigation stage to recommending for prosecution and in the courts.
It stated that the administrative action proposed by Ruku does not provide a commensurate deterrent effect to the far-reaching negative impact of corruption.
"Electing administrative action over prosecution will encourage participants in the procurement processes to engage in corrupt conduct without a deterrent consequence," EACC said.
"Therefore, amending Section 45 of the Anti-Corruption and Economic Crimes Act, 2003 by deleting subsection 2(b) and (c) will yield undesired results and is a backslide on the significant gains made in the fight against corruption in safeguarding public resources."
Emphasising the same, ODPP said deleting the subsections will give institutions the freedom to divert to unknown projects that may not pass the suitability test for the use of public resources.
"The implication of deleting the said section is that there is no legal framework for compliance with the constitutional principles of accountability and public participation, and it will create loopholes for corrupt practices," the prosecution added.
The Attorney General's office told JLAC that the proposed amendment is not in line with the anti-corruption policy framework and the international obligations that call for strengthening of the legal framework for combating corruption.
On its part, TI-Kenya said there is no justification for an amendment of the Act.