Graft convicts to be permanently barred from public office in new Bill

The Bill by Moiben MP Silas Tiren targets managers, chief executive officers and directors of public institutions. 

It seeks to hold them personally liable for running down public institutions. 

“A person who is convicted of an offence of corruption or economic crime and who was involved in the management of a public company, institution or state organ that suffered pecuniary loss as a result of corruption or economic crime, shall be personally liable for such loss,” reads the Bill. 

“Further, it seeks to completely bar anyone convicted of an offence under the Act from holding office as a public or state officer,” the Bill adds. 

Corruption under the law includes embezzlement of public funds. 

The proposed law seeks to empower the Ethics and Anti-Corruption Commission (EACC) to publish the names of those disqualified from assuming public office in the Kenya gazette at least once every year. 

However, it is not only the heads of state institutions who will be solely liable as it proposes to rope in those who aid in the running down of public institutions. 

“A person who is personally liable is jointly and severally liable in respect of losses incurred by the public company, institution or state organ with any other person who is so liable,” it adds.

The law that the Bill seeks to amend provides that a person who is convicted of corruption or economic crime shall be disqualified from being elected or appointed as a public officer for 10 years after the conviction. 

The law, however, makes it clear that this provision shall not apply for those in elective seats if the Constitution sets out the qualifications for the office. 

Presidential, parliamentary, governorship and MCAs are elective seats whose qualifications are spelt out in the Constitution. 

The holders of those offices are, therefore, not subject to the application of this Act. This will, however, change if Parliament approves the Bill and the President signs it into law.  

The Bill borrows heavily from Article 226 (5) of the Constitution, which calls for direct personal liability if the holder of a public office, including a political office, directs or approves the use of public funds contrary to the law or instructions.

It is also in line with the resolution of the National Assembly of December 2019 as it adopted the report of the Public Accounts Committee (PAC) on the audited accounts of the national government for the financial year 2016/17. 

The PAC report recommended that individual accounting officers and other public officers directly and personally liable for any loss of public funds under their watch should take responsibility for their actions of omission or commission.

Currently, public officers who occasion or oversee the loss of public funds are precluded from taking individual responsibility as they pass on the baton to their successors under the doctrine of collective responsibility. 

The Bill’s passage would be a relief to the EACC, the Directorate of Criminal Investigations (DCI) and the Director of Public Prosecutions (DPP) in fighting rampant corruption within the public service.  

Currently, a majority of individuals who have been accused of running down government institutions seek refuge in elective political seats to protect their ill-gotten wealth. 

“If the country had such a law before the 2013 general election, a majority of the current state and public officers would not be in office. They would be in jail,” said Mr Barasa Nyukuri, a governance expert.  

Interestingly, some of those accused of looting public coffers have been entrusted with the responsibility of managing public funds.

“We have seen those accused of looting public institutions being elected as governors, MPs or even MCAs. Others have been appointed chairpersons and chief executive officers of state corporations, while others have landed envoy positions abroad. This must surely come to an end,” said Mr Tiren.   

Already, a number of government officers including governors, Cabinet secretaries and principal secretaries have been suspended from office and charged in court over corruption.

Reports from the Office of the Auditor-General show that the government continues to lose hundreds of billions of shillings annually in corruption deals involving government officers entrusted with the responsibility of safeguarding the limited resources. 

At the national government level, to the 47 county governments, constitutional commissions and the parastatals, the audited reports paint a grim picture of misuse of public resources.

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