State officers who are under investigation or have been charged with corruption will suffer loss of salary, allowances, and comfort of their offices until the conclusion of their cases if MPs approve new changes to the law.
A government-backed Bill seeks to scrap a section of the law that entitles a public officer or state officer who is charged with corruption or economic crime to be suspended, at half pay, with effect from the date of the charge until the conclusion of the case.
The Statute Law (Miscellaneous Amendment) Bill 2022, also seeks to deny a suspended public officer who is on half pay from continuing to receive the full amount of any allowances.
The law currently allows suspended public officers charged with corruption or an economic crime to receive half of their pay and the full amount of any allowances pending the conclusion of the case.
The Bill empowers the Ethics and Anti-Corruption Commission (EACC) to silently apply for a High Court order to bar an officer under investigation or who is charged with graft or economic crime from accessing his or her office.
It also blocks officers who are facing graft probes or charges from exercising the powers of their offices, including participating in decision making and supervising staff.
The omnibus Bill amends the Anti-Corruption and Economic Crimes Act, 2003 to introduce the suspension of constitutional office holders whose removal process is set in the Constitution.
Currently section 62 of the Anti-Corruption and Economic Crimes Act, 2003 does not apply to an office which the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated.
“Notwithstanding the provision of any other law, where a State officer is under investigation for, or charged with corruption or economic crime, the commission [EACC] may, by an ex parte application in the High Court, seek for an order barring the officer from accessing his or her office or exercising the powers of that office, including participating in decision making, voting and supervising staff,” says the Bill.
The EACC will silently move to court for ex parte orders upon suspecting that a public or State officer is likely to conceal or interfere with the probe.
An ex parte application is used in emergency situations where one party asks the court for an order without providing the other party with notice.
“The provisions of subsection 6(A) shall apply where the commission, upon preliminary investigations, has established grounds to reasonably suspect that the public or State officer is likely to conceal, alter destroy, or remove records, documents or other evidence,” the Bill states.
The EACC will also move to court to secure orders where it suspects a public or State officer is likely to intimidate, threaten or interfere with witnesses or with investigations in any other manner.
In 2019, High Court judge Mumbi Ngugi ruled that State and public officers accused of corruption must step aside pending trial.
The ruling followed the prosecution of high-profile corruption cases that led to the suspension of senior officials, including county governors, from their offices while they fought graft allegations.
Justice Ngugi made the landmark ruling in a case where Samburu governor Moses Lenokulal was charged with corruption and unlawful acquisition of public property.
She ruled that Mr Lenokulal could visit his office only with the authority of the EACC.
Several top government officials are battling the EACC and the Director of Public Prosecutions in court over various charges related to corruption.