Landmark ruling upholds EACC's authority over integrity matters

When the Ethics and Anti-Corruption Commission (EACC) issues a damning report against you, consider your goose cooked.

This is the finding of Anti-Corruption High Court Judge Benjamin Musyoki, who said that once EACC decides to pursue a person or issues an adverse report, no one, including the President, has the power to interfere or overturn the decision.

According to Justice Musyoki, only the courts can intervene, emphasising that the anti-graft body is an independent entity, which should not be controlled or interfered with by external forces. "A declaration is hereby issued that the President or any other public officer or body, except a court of law, has no powers to overturn a decision of the second respondent,” said Justice Musyoki.

The implication of the judgment is that persons indicted by EACC cannot be cleared for elective or appointive positions unless a court rules otherwise.

He, however, dismissed a bid to bar former Murang’a Governor Mwangi wa Iria from appointment at the Public Procurement Regulatory Authority (PPRA).

The judge said there was no evidence to show that the politician had been impeached by the County Assembly, or that President William Ruto had interfered in any of the processes.

Justice Musyoki noted that, if he agreed with Kiroko Ndegwa that all persons with graft allegations should be barred from office, it would only take a complaint for anyone seeking a government job to be disqualified.

According to the judge, it would be unfair to indict a person before they are found guilty by a court of law and have exhausted the appeal process.

"We live in a society where political and other administrative competitions are at their own levels, and one can only imagine how easy it would be to remove competitors by making an allegation against them. This court is not ready to cause such confusion by making a declaration that expands the meaning of what the law intended,” argued Justice Musyoki.

He observed that, although Kiroko alleged that Wa Iria had been impeached, no evidence was produced to support the claim. Kiroko had alleged that Wa Iria was impeached twice, in 2015 and 2017, and claimed the former governor had been adversely adjudged in court cases related to abuse of office. He also cited Wa Iria’s appearance before EACC and the Legal Affairs Committee of the Senate.

Kiroko further alleged that Wa Iria had been involved in a forfeiture case where the state pursued Sh542 million in assets and that EACC had recommended that Wa Iria, along with 105 others, should not be cleared to vie in 2017 due to unresolved integrity issues.

EACC did not respond to the case, while the Attorney General and National Treasury urged the court to strike it out. They argued that Senate proceedings or reports could not determine Wa Iria’s suitability, as they had been dismissed and found unconstitutional.

The AG and Treasury also contended that pending investigations or criminal proceedings cannot be used to bar appointments and that enforcing Chapter Six of the Constitution is the role of EACC. They further noted that Section 62 of the Anti-Corruption and Economic Crimes Act did not apply, since Wa Iria was not a public officer at the time of appointment.

Wa Iria urged the court to dismiss the case, arguing that the criminal allegations were yet to be determined and that granting the petition would violate his right to be presumed innocent until proven guilty. He denied ever being impeached or removed from office.

Justice Musyoki criticised government officials for remaining silent while Kenyans sought answers in public interest cases.

"It does not augur well when members of the public seem more eager to check excesses, illegalities, or matters of public interest, while the bodies set up with statutory and constitutional mandates remain silent. It is abhorrent when such institutions sit back and watch two private citizens duel in court,” he said.

The judge singled out EACC, stating that letting the case slip through without comment could suggest it had something it did not want the public to know. He described this as a dereliction of duty.

"The second respondent should have been at the forefront and more active in giving this court information. Its silence in this matter and others of a similar nature should not be taken lightly. It must be assumed that there is something it does not want the court or the public to know, and I find that conduct a dereliction of duty by such an important institution,” he said.

Justice Musyoki further stated that those who demand a clean public service should be applauded and seen as champions, but no one should be condemned without a fair chance to present their side.

"However, as we promote the tenets of the Constitution and protect the rights of Kenyans, it should be remembered that there will always be competing interests between public and individual rights. Where collective rights are at the centre, private and individual rights may be affected.

"That is to say that we must strike a balance between the rights of Kenyans as a society and those of individuals so that we do not trample on the rights of a person in the name of promoting the larger public good,” concluded the judge.