State agencies oppose Kaluma bill as MPs prepare for debate

The Office of the Attorney General and the Ethics and Anti-Corruption Commission (EACC) on Tuesday led government agencies, mainly from the criminal justice system and civil society, in opposing a proposed amendment to the Anti-Corruption and Economic Crimes Act (ACECA) that will allow ex-convicts of economic crimes to vie for political seats.

The Anti-Corruption and Economic Crimes (Amendment) Bill 2023, sponsored by Homa Bay Town MP Peter Kaluma, seeks to repeal Section 64 of the ACECA, which bars those convicted of economic crimes from contesting political seats for at least 10 years.

Yesterday, representatives of the Attorney General, EACC, Office of the Director of Public Prosecutions (ODPP), Kenya Law Reform Commission (KLRC), Law Society of Kenya (LSK) and Independent Electoral and Boundaries Commission (IEBC) said that passing the bill in its current form would violate the Constitution.

Similar sentiments were echoed by Transparency International led by Executive Director Sheilla Masinde, representatives of Kituo Cha Sheria and URAIA.

They spoke yesterday when they appeared before the Justice and Legal Affairs Committee (JLAC) of the National Assembly, which is conducting public participation on the Bill despite a spirited defence by Mr Kaluma.

Ms Emily Chweya, the Director of Legal Services in the Attorney General's office, said the bill was designed to promote corruption within the public service and therefore violated the United Nations Convention Against Corruption (UNCAC), to which Kenya is a signatory.

"This bill violates the treaties that Kenya has ratified as well as the Constitution of Kenya. It has a negative impact on public confidence in public institutions and is terrible for investors and will therefore deny people the right to enjoy the services they need," Ms Chweya told the committee.

The UNCAC provides deterrent measures against corrupt practices.The Attorney General's opposition to the bill is weighty considering that he is the legal advisor to the president and the government, including which bills to highlight and which to reject.

Mr Abdi Mohamud, the EACC's deputy CEO, in a presentation to the committee through Mr David Too, the EACC's director of legal affairs, said that repealing Section 64 of the Act as proposed will have a negative impact on the anti-corruption war.

"The proposed amendment is retrogressive as it is against the public interest. It will serve to negate national values and principles of governance," Mr Mohamud said, adding, "Passing the bill in its current form will undermine public confidence and respect for the law and betray the constitution by weakening Chapter Six on leadership and integrity."

The EACC deputy chief executive cited Indonesia, Australia, Brazil, Canada, the United Kingdom, New Zealand, Zambia, Sri Lanka and neighbouring Uganda as countries that have barred people convicted of serious crimes, including economic crimes, from holding public office.

Section 64 of the ACECA, which Mr Kaluma wants repealed, states that a person convicted of corruption or economic crimes shall be disqualified from being elected or appointed as a public officer for 10 years from the date of conviction.

The law further states that the EACC shall, at least once a year, cause the names of all persons disqualified under this section to be published in the Gazette.

Mr Kaluma, however, defended the Act, saying the use of Section 64 amounted to double jeopardy as Section 48 of the Act already provided for sufficient punishment, which the EACC was complaining about."Section 64 of the Act is designed to punish someone who has already been punished and reformed and is therefore double jeopardy.

It is also in the wrong Act. If anything, it should be in the EACC Act," Mr Kaluma told the committee, adding, "There is a reason why people are taken to prison - to be reformed and rehabilitated.

But Ms Masinde told the JLAC, chaired by Tharaka MP Gitonga Murugara, that all she expected was for Parliament to protect the Constitution by stopping the Bill.

"This amendment should be stopped.It makes Kenyans sad and worried that such a proposal is coming from a Member of Parliament who has taken an oath to defend and protect the Constitution," said Ms Masinde.

"The passage of this bill will go against the previous decisions of Parliament and the court ruling. If we don't stop the amendment, we will be creating an avenue for the theft of public resources," added Ms Masinde.

Under the law, once a bill has been published and tabled in Parliament, only MPs can stop it at second reading by voting it down.

In July 2018, the National Assembly blocked the appointment of Mr Ben Chumo as a member of the Salaries and Remuneration Commission (SRC) after a vetting process.

In a report to the National Assembly, the Finance and National Planning Committee rejected Mr Chumo's nomination on integrity grounds after he was ousted as CEO of Kenya Power over allegations of abuse of office.

In July 2022, the Supreme Court blocked former Nairobi County Governor Mike Sonko from contesting the 9 August 2022 elections over integrity issues, including abuse of office.

The KLRC noted that Article 75 of the Constitution provides for permanent disqualification of those charged and convicted of economic crimes, as opposed to the 10 years provided for in the ACECA, with the ODPP saying that corruption must be fought in all forms and manifestations.