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September 15, 2004

PRESS STATEMENT

Allegations have been made to the effect that His Excellency the President in delaying to appoint Dr. Julius Rotich as recommended by the Advisory Board of the Kenya anti-Corruption Commission and approved by the National Assembly, violated the Constitution and the Law and in particular s.8(4) of the Anti-Corruption and Economic Crimes Act, 2003 which provides that on approval of a person by the National Assembly, "…the President shall appoint the person concerned to the office in respect of which the approval was given."

Our jurisprudence recognizes an important reality that the Constitution of Kenya is a living piece of legislation that enshrines the values and aspirations on which the Republic is founded and the principles which guide the relations between those who govern and those who are governed. As such its interpretation is liberal and broad and not pedantic i.e. restrictive. In this spirit, the Anti-Corruption and Economic Crimes Act, 2003, must be interpreted in a manner that ensures its consistency with the Constitution, and if that is not possible, it must necessarily give way to the Constitution.

The basic structure of our Constitution is that the Executive Authority of the Government of Kenya is vested in the President of the Republic. Under the current Constitution what we have is an executive President and not a ceremonial President. Consequently to interpret the said s.8(4) of the Act in a manner that makes the Executive President a mere rubber stamp in the process which leads to an executive function of "appointment", is in effect to plead that s.8(4) is ultra vires the Constitution, which I believe is not the case.

In this case, the limitation on the powers of the President is that he can only appoint a person recommended by the Advisory Board and approved by the National Assembly. This does not convert the President into a rubber stamp in the process. The President who is an executive President, before he appends his signature to any document, has grave and important constitutional responsibilities to ensure that the process and the procedure leading to the document placed before him for signature was lawful and proper. Apart from ensuring that the provisions of the Act were adhered to, one can also visualize situations which were never contemplated before arising between the approval by the National Assembly and the appointment by the President. The impotence and blindness to fundamental issues of integrity, ethics and good governance of the Executive cannot be presumed in the making of appointments of national import.

At the time the advisory Board made the recommendations, they must have been aware of the ongoing investigations by the Kenya Anti-Corruption Authority, among others, into matters touching on the past conduct of the candidate they finally settled on for a leadership position in the same organization that was investigating him. Even if they became aware of such investigations after making the decision, they ought to have sat to review the decision or at least formally bring it to the attention of the National Assembly. The Board ought to have waited for this due process to be completed, and if the investigations concluded that candidate was innocent, the Board would then have made the recommendation.

It was incumbent for the Advisory Board to fulfill its statutory duty to ensure that the person they recommended was a person of "outstanding honesty and integrity." (see FIRST SCHEDULE Paragraphs 1(I) (b) and 2). They should have cleared any allegation on this important issue of integrity before making the recommendation. As it is, arising out of this breach of their statutory duty, H.E the President was placed in a difficult situation, a predicament and a dilemma. A unique dilemma because His Excellency the President cannot, in the exercise of his Constitutional powers, ignore that which was overlooked or given scant attention to, or thought to be an inconsequential matter by the Advisory Board, particularly when such matters strike at the credibility and integrity of the Kenya Anti-Corruption Commission.

I am surprised that in the statement of the former Chairman of the Advisory Board and in the statement of the Law Society of Kenya, they state that they are not concerned with the "guilt or otherwise", "appropriateness or otherwise" of Dr. Julius Rotich. They ought to have been seriously concerned and it was their duty to remove the cloud before recommending the appointment. It is not fair to Dr. Rotich and the KACC for an appointment to be made under such perceptions which perceptions may have no foundation whatsoever.

It is no solution as has been suggested, for the President to appoint and then refer the matter to the tribunal established under the Act. All these matters which arise before appointment have to be dealt with before appointment. The Tribunal can only deal with matters which arise after appointment and only on stated statutory grounds. Once appointed the person can challenge the jurisdiction of the tribunal to look into those matters which were known and which should have been dealt with prior to being appointed. Once appointed, you confer on such a person the status of outstanding honesty and integrity. This status can only be challenged by acts or omissions that happen afterwards and possibly by acts or omissions that were not known prior to the appointment.

Although we have an executive President, his powers to appoint in this particular case are limited to only to appoint a person recommended by the Advisory Board and approved by the National Assembly. To the extend that H. E. the President has not appointed any person in place of Dr. Julius Rotich, he has not usurped the mandate of the Advisory Board and the mandate of the National Assembly and neither has he violated s.8(4) of the Anti-Corruption & Economic Crimes Act.

The way forward now is for the Advisory Board to do its duty, go back to the drawing board and start the process which will lead to the requisite appointment. Although what I have stated applies to the executive powers of President, I can add that even in those countries which have a ceremonial President, there are examples where the ceremonial President has delayed in signing documents which the ceremonial President was not happy with and this has been resolved amicably.

If the President wanted to act out of political expediency, he would have ignored these pertinent concerns and appointed. The President's action underlines the fact that the war against corruption should not be fought on the basis of ethnicity or political expediency or personal aggrandizement but only on the basis of the Rule of Law, the principles of good governance, ethics and integrity, which it is the President's sworn duty to uphold.

In conclusion the action by the President was Constitutional, Legal, Ethical and proper.

(S. AMOS WAKO), EGH, EBS, S.C., MP
ATTORNEY GENERAL

15TH SEPTEMBER 2004