Storm over bill to amend graft laws

Various State and non-State actors have opposed amendments to the Anti-Corruption and Economic Crimes (Amendment) Bill, 2023, that seek to delete two offences prescribed in it.

Ethics and Anti-Corruption Commission (EACC), Office of the Attorney General (AG), Office of the Director of Public Prosecutions (ODPP) and Transparency International Kenya (TI-Kenya) opposed the bill on grounds that it is retrogressive and will claw back gains made in the fight against corruption.

Specifically, the bill sponsored by Mbeere North MP Geoffrey Ruku seeks to amend Section 45(2) of the Act by deleting the two (2) offences prescribed in parts 2(b)and (c) namely; failure to follow procurement guidelines and engaging public funds in an unplanned projects.

It seeks to de-criminalise non-compliance with procurement guidelines and engagement in unplanned public projects, the bill terms them as administrative matters that are better addressed through administrative action as opposed to criminal prosecution as is the current case.

Appearing before the National Assembly’s Justice and Legal Affairs Committee (JLAC) chaired by Tharaka MP George Murugara, the agencies pleaded with the committee not to allow the amendments to sail through the House as it is dangerous and a backward step in the fight against corruption.

In its submission, EACC said the proposed amendments to Section 45(2) has far reaching implications and would negatively impact on the legal mechanisms established to actualise Article 227 of the Constitution, the principles of public service under Article 201 and the use and management of public resources under the Public Finance Management Act.

Legal framework

The EACC team, led by Director of Legal Services and Asset Recovery David Too, told the committee that the Ruku Bill potentially mutilates the legal framework for the fight against corruption.

EACC maintains that if enacted as proposed, the amendments will remove essential mechanisms for enforcing accountability for public resources and create legal escape routes for perpetrators of corruption thus opening a floodgate of corruption scandals.

“We are of the considered view that the law intended to address is that of accountability for public resources, compliance with the above constitutional; and legal requirements cannot be achieved without an enforcement mechanism,” EACC argued in its submission.

ODPP opposed the amendments on grounds that the offence of engaging in a project without prior planning envisages a scenario where a public entity engages in a project which had not been planned, budgeted and no funds were allocated.

“The net effect of deleting this Section is that the principles of public finance under Article 201 of the Constitution ceases to apply in respect of the said (unplanned) projects. There is no framework for public participation in unplanned projects given that the budget component was not part of the budgeting process under the Constitution.”

The AG’s office, led by Solicitor General Shadrack Mose, opposed the amendments on grounds that it is in line with the anti-corruption policy framework and international obligations that call for strengthening of the legal framework for combating corruption.

By removing sub-sections b and c of the Bill, the proposed amendments remove procurement fraud and malpractices from the ambit of corruption and economic crimes.

TI on the other hand opposed the Bill in its entirety on the grounds that the proposed amendments go against the public interests, principles of public finance (Article 201 of the Constitution, leadership and integrity standards and the national values and principles of governance which includes accountability, rule of law, good governance and integrity.

TI regretted that If passed, the bill will undermine the progress made in the fight against corruption since the enactment of the Anti-Corruption and economic Crimes Act in 2003 and will pose a serious threat to the principles of justice and accountability in the management of public resources.

“Upholding criminal sanctions for corruption offences serves as a deterrence for corruption and non-adherence to the law,” the submissions.