Mr Mumo Matemu answers questions from members of the Parliamentary Committee on Legal Affairs on December 14. The heated debate in Parliament sparked by his nomination to the Ethics and Anti-Corruption Commission is a pointer of the scrutiny that those seeking public office could face. File
The heated debates in Parliament over the suitability of three top officials nominated to head the Ethics and Anti-Corruption Commission revealed the kind of theatrics that Kenyans should expect in coming months as various institutions seek to interpret the Constitution.
MPs ignored President Kibaki and Prime Minister Raila Odinga’s nomination of Mumo Matemu to head the commission as they examined and debated his leadership and integrity records in a televised debate.
Yet the kind of public scrutiny that faced Mr Matemu, Jane Onsongo, and Irene Keino is now a standard for anyone interested in holding a constitutional office, according to Chapter Six of the Constitution.
“We shall not blink or flinch in the interpretation of the Constitution,” Chief Justice Willy Mutunga said last month at a meeting convened in Nairobi by former UN secretary-general Kofi Annan to review progress in political reforms meant to prevent recurrence of the violence that rocked the country after the 2008 General Election.
Chapter Six of the Constitution is frequently violated in the political horse-trading that has greeted appointments to constitutional offices, Dr Mutunga said, adding that courts would always uphold the right interpretation of law.
Among other things, the chapter states: “The guiding principle of leadership and integrity is selfless service based solely on public interest as demonstrated by honesty in execution of public duties and in declaration of interests that may conflict with it.”
The goal of the chapter, lawyers said, is to ensure that only people with good track records in delivering service ascend to public offices. However, there is growing concern that Chapter Six could also be abused by politicians.
“What we are seeing is a trend where civil servants of outstanding moral character are being sacrificed on the basis of generalisation that as long as they served in the past regime, they can never be fit to lead any organisation,” Garsen MP Danson Mungatana told Parliament during the EACC debate. Mr Mungatana is the sponsor of Public Appointments (Parliamentary Approval) Bill 2011 which seeks to provide a policy guideline on public vetting.
If approved, candidates eying public office will be required to declare their wealth, their political affiliations, and relationship with other senior public officers. This will be in addition to background screening on education, leadership, and integrity.
Last week, he defended this line of argument in Parliament saying that some of the civil servants being forced to carry the burden past misrule may have been helpless participants given the restrictive work environment that prevailed.
“Some of them may be true patriots, having weathered low pay and an oppressive work environment to stay at home instead of looking for good money abroad,” Mr Mungatana said, insisting that condemning them whenever good paying jobs emerge on the basis of actions of past regimes constitutes double punishment.
If well managed, however, open vetting of public officers represents a radical change in State hiring.
Before the promulgation of the Constitution, top government officials kept away from public scrutiny and shared out public jobs among relatives, cronies, tribes and supporters. Such was the level of scrutiny that greeted the search for the chairman and commissioners of the Independent Electoral Commission (IIEC), the successor for the Electoral Commission of Kenya (ECK), which was blamed for the bungled 2007 elections.
All the 44 candidates interviewed for the position were screened on their tax, loans, and criminal records in the full glare of TV cameras.
Seek clearance
The applicants were required to seek clearance from the defunct Kenya Anti-Corruption Commission, the National Security Intelligence Service, the Criminal Investigation Department, Kenya Revenue Authority, the Director of Public Prosecutions, the Higher Education Loans Board, and their professional bodies.
Ms Koki Muli, one of the front runners for IIEC’s chairperson’s position had to fend off claims that as the executive director of the Institute of Education in Democracy, she interacted closely with politicians and top officials of the defunct ECK.
To this end, a collection of speeches she allegedly made in 2007 as well as evidence showing she had meeting with past ECK officials surfaced during the interviews.
“As a member of civil society, I worked with all stakeholders including politicians from all sides,” she said in self defence. Mr Isaac Mutoka Shivachi, who graduated from the University of Nairobi in 1980, was disqualified during the interview stage on allegations that he failed to service a loan from the Higher Education Loan Board.
Also put to task was Mr Abiud Simiyu, a 71-year-old candidate who was asked to explain how his son had secured a job as a returning officer at Interim Independent Electoral Commission where he served at the time as a commissioner.
In spite of the harsh vetting in public, experts said that politicians are still manipulating the process for selfish gains. Prof Yash Pal Ghai, a constitutional lawyer, said that politicians had hijacked the process of electing public servants, violating the spirit of the constitution.
“Key constitutional offices are still going mainly to people that politicians believe can protect their wealth,” Prof Ghai said at the meeting convened by Mr Annan last month. Gichugu MP Martha Karua had similar views. “We are seeing a lot of resistance from the top whenever Chapter Six in invoked in public appointments,” she said. “A culture change is necessary to push the Executive out of its current comfort zone,” she added.
