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Taskforce splits EACC, clips House powers in vetting PSs

By Eric Wainaina
Tuesday, September 29th, 2020
BBI taskforce chairman and Garissa Senator Yusuf Haji hands the initial report to President Uhuru Kenyatta at the Bomas of Kenya last year. Photo/PD/FILE
In summary
    • Ethics and Integrity Commission to replace National Cohesion and Integration Commission.
    • Ethics and Integrity Commission.
    • Anti-Corruption and Economic Crimes Commission.
    • NCIC to serve until the EIC is established.

Building Bridges Initiative (BBI) final report has recommended drastic changes in the recruitment of the Chief Justice, Attorney General and Director of Public Prosecutions (DPP) in a bid to strengthen the fight against corruption.

Laws proposed would see the Ethics and Anti-Corruption Commission (EACC) split into two, with one entity dealing with graft while the other would handle ethics.

The report also recommends changes on the manner in which the Controller of Budget and Auditor General are recruited to enhance transparency and accountability.

If the bill drafted by the BBI task force is adopted, the National Assembly will lose the role of vetting of the officials to the Senate in a move that seeks to give the Upper House more powers and also raise the bar for the nominees.

Unlike is the case currently, the Attorney General will sit in the National Assembly as an ex-officio while the holder of the office of the DPP, which will be an independent commission, will have the qualifications raised from those of a High Court judge to those of Appellate judge

Article 157 of the Constitution says:  “DPP shall be nominated and with the approval of the National Assembly, appointed by the president.”

But the bill suggests the “National Assembly” clause be deleted and substituted with the “Senate”.

As opposed to the present arrangement where the National Assembly has been vetting Principal Secretaries, the role would now be transferred to the Public Service Commission (PSC), which hires public servants.

Further, the team chaired by Garissa Senator Yusuf Haji, in the document dubbed ‘Building Bridges Initiative Final Draft’, the Constitution of Kenya (Amendment) Bill 2020 had recommended that the Ethics and Anti-Corruption Commission be restructured to create distinct bodies.

Proposals have been made to amend Article 248 of the Constitution to create the Ethics and Integrity Commission (EIC) to replace National Cohesion and Integration Commission (NCIC) and a new Anti-Corruption and Economic Crimes Commission (ACECC) to deal with corruption and economic crimes that are currently handled by EACC.

While NCIC will serve until the EIC is established, the EACC chief executive and his team would transit to the new ACECC, with commissioners expected to serve until their term expires.

“The bill restructures the EACC and creates two separate commissions both of which will have constitutional protection as independent commissions under Chapter 15 of the Constitution and will consolidate mandates previously assigned to statutory entities,” read the recommendations.  

ACECC would focus on economic crimes and corruption matters, including combating economic crimes, corruption, recovery and of the proceeds of crime and financing terrorism while EIC will exclusively deal with ethics, integrity, national cohesion and national integration so as to promote ethical and cohesive society.

Highest votes

Further, the bill proposes to amend Article 80 that highlights on Legislation and Leadership to require Parliament to enact legislation establishing mechanisms to facilitate expeditious investigations, prosecution and trial of cases relating to graft and integrity to achieve speedy disposal to the cases.

 The document also raises requirements for the position of CJ by increasing the years of experience from 15 to 20. 

It proposes a raft of changes in the Executive and Parliament by among other things accommodating a Prime Minister and his deputies, Attorney General and Leader of Opposition who will be the candidate with second highest votes in presidential election in the House.

“Provisions of this Act relating to Chapter Nine of the Constitution(that highlights in the structure of the Executive) shall take effect from the next General Election…the provision of this Act relating to Chapter Eight of the Constitution (that highlights on the Legislature) shall take effect from the next General Election,” reads a section of the draft bill which raises the quorum from the current 50 MPs to a quarter.

The PM, will be sent in the Security Council, supervise the execution of the functions of ministries, chair committee meetings assigned by the President, assign any of the functions of his deputy who will also be MPs and ministers.

To ensure two-thirds gender rule whose failed implementation led to an advisory by Chief Justice David Maraga to have Parliament dissolved is achieved, the taskforce has recommended that 43 members, as opposed to the current 12, be nominated to the National Assembly.

The bill, which retains the contentious two-thirds gender rule clause, proposes to amend Article 96 on the Role of the Senate to enhance the role of Senate in the enactment of legislations by providing bills to be considered by the Senate as opposed to the current scenario where the House considered only Bills related to counties.

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