WHY HAS PRESIDENT KIBAKI MADE A NEW LAW WITHOUT PARLIAMENTARY APPROVAL?
Nov 27th, 2007 by Mars Group
On Moi Day the 10th October 2007, President Mwai Kibaki signed his name giving his assent to a new Section 25A of the Anti Corruption and Economic Crimes Act which authorizes the cessation of investigations by the Kenya Anti Corruption Commission. The problem is this was done wholly without parliamentary approval or authority as required by the Constitution of Kenya. In effect the President legislated and made Kenyan Law alone – an unconstitutional and illegal act. If Section 25A is not repealed the cause of justice for the people of Kenya will suffer, and the government will have an easy way to abandon the investigation of corruption and economic crimes.
As if to compound matters the new Section 25A reintroduces the rejected idea of amnesty for corruption and economic crimes. Worse it goes ahead and allows the Kenya Anti Corruption Commission (KACC) in consultation with the Minister for Justice and Constitutional Affairs and the Attorney General to give “undertakings” including to the subject of corruption investigations “not to institute or continue with investigations against any person suspected of an offence under this Act.”
This new clause helpfully creates a new defence for corruption suspects to use in avoiding the legal consequences of their crimes. The so-called undertakings contemplated in clause 25A amount to an unsolicited offer (to every corruption suspect) of an amnesty on the following conditions:
the suspect must make “a full and true disclosure of all material facts relating to past corruption and economic crime;”
the suspect must through the KACC pay, refund or deposit “any property or money irregularly obtained with interest at a rate prescribed by the Minister” for Justice and Constitutional Affairs;
the suspect must make reparation to any person affected by his corrupt conduct; and,
The suspect must pay for all loss of public property occasioned by his corrupt conduct.
All well and good it would seem. However regardless of these conditions, the problem still remains Section 25A has materialized onto our statute books out of the ether. In fact a search of the public record shows that:
No part of Section 25A has ever been seen, let alone been debated by the Kenya Parliament. In fact there is no record of this provision in the Hansard.
Section 25A did not feature at all in the Statute Law Miscellaneous Amendments Bill 2007 which ended up including the amnesty clause rejected by President Kibaki.
There is absolutely no mention of it in the President’s September 27th 2007 Memorandum refusing his Assent to the amnesty clause.
Section 25A is in short a completely new provision signed into law by President Kibaki alone. The President has legislated, on his own, an amnesty and restitution committee comprising of 3 public officers (KACC’s Director the Attorney General and the Minister for Justice and Constitutional Affairs) in an opaque and un-transparent manner.
In our considered opinion KACC’s Director the Attorney General and the Minister for Justice and Constitutional Affairs lack the public mandate to forgive anybody, particularly in view of the total collapse of the institutional war on grand corruption over the last three years since Anglo Leasing reared its ugly face. The best practice, the world over, is the establishment where amnesty is accepted public policy of amnesty granting processes which are transparent, open to scrutiny and fully trusted.
In giving his assent to Section 25A President Kibaki ignores his own Memorandum to Parliament dated September 27th 2007 when he rejected an attempt by Paul Muite’s Committee on the Administration of Justice to create a cut-off date for KACC investigations when he wrote that:
“Amnesty is however a major policy and public interest issue which cannot be addressed within the context of this [Statute Law Miscellaneous Amendments] Bill and which can only be addressed through a separate comprehensive Bill.”
It would appear that he changed his mind two weeks later and gave his assent to a clause which Parliament never proposed or debated. By October 15th 2007, the very same Bill that President Kibaki said was an unsuitable legal basis for amnesty for grand corruption and economic crimes was published by the Government as an Act of Parliament containing a very obvious amnesty clause.
We believe that amnesty is a major policy and public interest issue which can only be addressed through a comprehensive Bill, which clearly has not happened yet. Further we believe that whatever amnesty model is chosen (and there are many) the integrity of the process is as solid as the integrity of the appointment of the persons to manage it.
Those who receive or discuss amnesty proposals must make important decisions. These decisions must be made on a serious consideration of the merits. Those who make this important decision should enjoy unalloyed confidence from the public. They must be regarded as being above compromise or political control or inclination. They must be able to convince the public that they are fit and proper persons to decide on the fate of billions of shillings at a single go. Do the KACC, Attorney Genera and Minister for Justice and Constitutional Affairs fit the bill? Do they enjoy our confidence as the public? Are we certain they will comply with the highest standards of integrity? Is this 3 officer committee representative and free of bias?
If Section 25A has already been operationalised then these 3 public officers must publish the names of any persons who have been offered conditional forgiveness. They stand reminded that Kenyans are aggrieved by the high levels of grand corruption and impunity amongst our political and business elite. During the same week that President Kibaki signed Section 25A into law, a survey by the Africa Centre for Open Governance (AfriCOG) found that:
for 89% of the population corruption was the number 1 concern heading into the elections.
82 % of the respondents categorically stating that little had been done to bring corrupt individuals to account for their actions.
With regard to the potential use of amnesties for economic crimes, 54 % of the respondents believed that corrupt individuals must face the full force of the law,
22 % wanted the return of stolen assets
While only 6 % were ready to forgive and forget.
If Section 25A is a stratagem to launder the reputations of many corruption suspects who are currently running for Parliament, it is unlikely to succeed. The AfriCOG poll found that 94 % of the respondents rejected the appointment of public officials with a corruption record. Indeed the majority of the respondents gave a new government only up to six months to implement tough measures against past corruption.
If this is the grand plan to deal with such corruption scandals as Goldenberg, Anglo Leasing, Ken Ren and Kroll then it is a futile one. Kenyans will not stand for our Constitution being broken even by the President. Public pressure made President Kibaki reject the amnesty clause. Public pressure must make him scrap Section 25A.
Section 25A proves that the KACC is preoccupied with forgiving and not investigating corruption. This coming just prior to a landmark general election reeks of bad faith.
According to the Kenya Gazette Supplement No. 100 (Acts No. 7) dated 15th October 2007 Section 25A has commenced in effect. Our last question is who put it there and and why did the President sign it?
WE URGE KENYANS TO SHOW THEIR DISAPPROVAL AND TO CALL FOR THE IMMEDIATE REPEAL OF SECTION 25A
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