Can the EACC “clear” Candidates? Probably Not

One thing that we at RoGGKenya do as a service to our fellow journalists is that we try to locate the rule of law for what Kenyan authorities are doing – or should do.
And now it is the action of the EACC, the main agency that fights corruption in Kenya, that is in question. Two major developments are in the news where EACC is involved.

Number 1: Clearance of Candidates

Jubilee has announced that the party is asking EACC to “clear” all candidates.

But while it is true that public officials cannot run for an office if they have been convicted of a crime (Sec. 64 of the Anti Corruption and Economic Crimes Act ), we have to stress the fact that the law speaks of “conviction” and not of investigation. Also, when EACC officers educate the public about their role, they usually stress that there is no such thing as a “clearance” of corruption charges. The EACC may only recommend to the ODPP to further prosecute a case. Therefore it is highly misleading if a person states that the EACC has “cleared” him or her. It would be only possible to say that the EACC had recommended a specific case for closure by the ODPP or decided not to investigate.

It is also to be doubted that – even if there was a thing like “clearance” – there was enough time for investigating it before the voters cast their ballot in five months. Let alone before the parties have to nominate their candidates seven weeks from now. There are more than 4,000 posts that we will have to elect, including the Members of County Assembly. Let’s get rid of the doubt: It is logically and physically impossible to “clear” them from any criminal charges before their nomination or before the elections.

Number 2: the announced Lifestyle Audits

EACC has announced to conduct numerous “lifestyle audits” mainly with sitting governors who want to seek re-election. This means that they will be looking for unexplained wealth (See Sec. 55 of the Anti Corruption and Economic Crimes Act) to find out what the severe consequences will be if unexplained wealth is found. Of course, because unexplained wealth constitutes a corruption offence in Kenya, those officials who own it can not run for office again. (Also note our page about a missing declaration of unexplained wealth as an offence.)

But the move comes late it seems to us. How can EACC complete these lifestyle audits early enough for the elections? Is there enough EACC staff? All the officials will have good legal support and explanations for their wealth. It will take time to find out if the explanation is phony or not.

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