Corruption-busting strategy tested in Kenya court

21 September 2018 · Carmel Rickard

CONSTITUTIONAL limits on how to deal with corruption – said to be Kenya’s Public Enemy Number One – have been taxing Nairobi judge, Byram Ongaya, after local activist Okiya Omtatah Okoiti challenged new moves to vet public servants.

WAS the Madaraka Day speech by Kenya’s president, Uhuru Kenyatta, declaring a new wave of corruption investigations among the country’s civil servants an attempt to rule by “presidential fiat”? Was that 1 June 2018 national holiday address a mere “roadside declaration”, and an improper way of running the public service? Firebrand Kenyan activist, Okiya Omtatah Okoiti believed so, particularly when the speech was followed up by a circular from the head of his country’s public service, Joseph Kinyua, announcing a wide-ranging lifestyle audit of top civil servants.

Kinyua’s June 4 circular instructed all heads of procurement and accounting units in government ministries, departments and agencies to take compulsory leave for 30 working days, starting from 6 June 2018. During the time they were booked off, officials would continue to draw their normal salary and allowances, but they were not allowed to leave Kenya without special permission.

Before they quit for their unexpected work break, they were all instructed to put a number of documents and other personal information into a sealed envelope that had to be left with the head of the public service at Harambee House, the central government building in Nairobi.

In that envelope they were to put a whole host of personal information including their PIN numbers, their utility account numbers, details of their immediate family, a list of all their assets including vehicles and other machinery, their stocks and shares, club membership, social media accounts, not to mention their liabilities including school fees and insurance policies.

They were also warned that they might be ordered for oral interviews and that further information might also be required.

Though it turned out that all the affected officials immediately obeyed these instructions, Okoiti thought the circular overstepped the mark by infringing a number of constitutional rights and he went to court asking for a declaration of invalidity.

In his judgment on the matter, Judge Byram Ongaya recalled the president’s original words during his Madaraka Day speech. He had said that he would lead the nation in getting rid of corruption and division, which were Kenya’s main contemporary challenges “just like colonialism” had been in the past. In the “war” on corruption, he proposed a number of steps including a “fresh vetting” of heads of various key departments.

Translated into action by the head of the public service, however, a number of serious legal mistakes were made, said Okoiti, listing at least a dozen grounds on which in his opinion, the circular should be set aside as unconstitutional, null and void.

But according to Kinyua and the attorney-general, against whom the case was brought, if the petition were allowed it would bring the fight against corruption to a halt and thus harm over 40 million Kenyans. This was no “fishing expedition” but a necessary collection of information; nor was it prejudicial since “once a person accepts to become a public officer he or she is thereby open and available to public scrutiny”.

The court ruled that, contrary to the view of Kinyua and the attorney-general, once it was established that the petition concerned a matter of “public interest”, Okoiti had standing to bring the petition.

But Okoiti was wrong in arguing that Kinyua was overriding the powers of the public service commission. It was also misconceived for Okoiti to complain that the president was engaged in a “roadside declaration” with his speech: it was formally lodged on the relevant government website and his decision in re-opening the “vetting” of public servants was in writing.

The Kinyua circular was not pretending to be a statutory instrument, but instead was “merely coordinating the process on behalf of the president”.

However, some aspects of the circular’s content ran into trouble with the judge who held it was not constitutional to insist on 30 working days, with pay, for the officials concerned. There was no legal instrument that provided for “compulsory leave”, he said. While on leave, the public servants “would earn without working” and that was not a justified use of public resources.

By imposing a system of compulsory leave with full pay, the circular offended the constitution. It was unlawful and not in the best interests of either the public officials concerned or the taxpaying public. It resulted in a “double tragedy” because it allowed payment to an officer “who in the meantime is not rendering public service as expected” and at the same time created a sense that the officer concerned was involved a disciplinary matter, but did so without due process.

Other aspects of the circular and its provision were upheld by the court: providing information in envelopes was not objectionable as long as the whole process was handled in a way that protected the officer’s constitutional rights. The information to be provided in the envelopes was in any case the sort that civil servants would ordinarily be required to provide under the Public Officer Ethics Act.

On the question of costs, the judge ordered the Public Service Commission and the Attorney General to pay Okoiti’s costs. Since Kinyua had been acting in good faith in the execution of his duties, he could not be held liable to pay costs.

In its finding that the directive for 30 days of compulsory special leave on full pay was not lawful, the judgment, delivered on 20 July, will have a number of results. For many public servants however, the most immediate may well be that they must return early from their unexpected holiday at state expense.

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Read the full judgment discussed in this article here: Okiya Omtatah Okoiti v Joseph Kinyua, Public Service Commission & Attorney General

Carmel Rickard

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