MPs in the 12th Parliament failed to consider key amendments to the Parliamentary Approval Act 2011 that would have seen cabinet secretary nominees pass through a tough vetting process.
While a number of proposals were made to the Act to tighten the loose ends, lawmakers never revisited them, a move that might give President William Ruto ’s nominees an easy ride during their vetting in parliament.
Although the lawmakers increased the vetting period from the initial 14 to 28 days, other parts that could have raised the integrity probe and higher academic level for the cabinet secretary nominees were never considered by the House.
The lawmakers in changing the days argued that 14 days were not enough for them to give notice to the public about the impending vetting so that they can submit any memorandum about any of them.
The MPs also said it is not possible to vet the CS nominees, retreat to write a report, table it, give notice of motion for the report and finally the whole House can deliberate on the document.
Some of the proposals that could have given the Ruto men and women a hard time including having representatives from investigative agencies such as the Ethics and Anti-Corruption Commission (EACC), Kenya Revenue Authority (KRA), Higher Education Loans Board (HELB) and Directorate of Criminal Investigations (DCI) physically present during the vetting to ask critical questions on matters of integrity and taxes.
In bringing representatives of the bodies on board during the vetting process, the MPs argued that Parliament is not competent to check the criminal background of nominees hence it is the agencies that can ask such critical questions.
A source in Parliament well conversant with House rules and procedures, however, said the move would have compromised the separation of powers and parliament would have been seen to have ceded its functions to other bodies hence it was shelved.
Currently, it is the Clerk of the National Assembly that writes to the agencies and the Office of the Registrar of Political Parties requesting reports with respect to the nominees on matters of ethics and integrity, tax compliance, criminal records, higher education loan repayments and political party affiliations.
The bodies are just supposed to provide the information, which will then be availed to the committee during vetting. It is now upon members of the committee to peruse the documents and ask questions.
Section 6 (9) of the Public Appointments (parliamentary approval) Act of 2011 provides that “any person may, prior to the approval hearing and by written statement on oath, provide the clerk with evidence contesting the suitability of a candidate to hold the office to which the candidate has been nominated."
While considering the appointment of Mutahi Kagwe and Betty Maina as nominees for CSs for health and industrialisation respectively in 2020, the committee as part of their recommendations in its report to the House said there is a need to increase the number of days for the vetting process.
The committee also wanted section 9 of the Act amended by deleting the provision which provides that after the expiry of the period of consideration and parliament has neither approved nor rejected the nomination of a candidate, the candidate shall be deemed approved.
On the questionnaire bit, the committee proposed amendment of question 28 which currently asks whether a nominee has been charged in a court of law, the committee instead wanted the nominee to be asked about conviction and status of a case if appealed. This would have provided an avenue to reject or put aside the vetting of the nominee until he concludes his case.
The committee also wanted question 25 on the net worth of the nominee amended to specify that nominees provide details of their networth instead of submitting a total sum.
Although the appointment of cabinet secretaries is a prerogative of the President according to articles 132 (2) and 152 (2) with approval of Parliament, the Head of State in making the appointments must be guided by two-thirds gender rule, representation of regional and ethnic diversity and leadership and integrity.
Article 232 of the constitution provides for the values and principles of public service which include high standards of professional ethics, efficient, effective and economic use of involvement of the people in the process of policymaking, accountability for administrative acts, transparency and provision to the public of timely, accurate information.
It also talks about the representation of Kenya’s diverse communities and affording adequate and equal opportunities for appointment, training and advancement at all levels of the public service of men and women, the members of all ethnic groups and persons with disability.
The committee in its report, however, noted that while Article 130 (2) of the constitution provides that the composition of the national government shall reflect the regional and ethnic diversity of the people of Kenya, it noted that there is need for a clear definition of what regional diversity entails considering that Kenya is divided into counties and not regions.
The lawmakers when they were passing the report on the nomination of former Sports CS Rashid Echesa pointed out they would push for a requirement that CS nominees must possess a degree certificate after the level of education of Mr Echesa was questioned.
Currently, the law does not explicitly demand a degree for CS nominees. Azimio has promised tough questions on integrity matters for the Ruto nominees and even reject some of them with cases in court.
In particular, the Azimio MPs are targeting Public Service nominee Aisha Jumwa and her agriculture counterpart Mithika Linturi.
Ms Jumwa, who lost Kilifi gubernatorial seat to ODM candidate Gideon Mung’aro, is currently facing a murder trial over the death of ODM supporter Jola Gumbao while Mr Linturi was last year charged in court over attempted rape in a hotel in Nanyuki accusations he said denied terming them politically instigated.
