Chapter 6 of the New Constitution addresses Leadership and the requisite levels of Integrity expected of all State and Public Officers. It is to the EACC that the people of Kenya look up to, to ensure full compliance to high standards of Integrity by all public officers especially during recruitment into office. The Commission is also expected to enforce those standards through constant monitoring and evaluation of performance among public servants. Chapter 6 - Leadership and Integrity:
79. Parliament shall enact legislation to establish an independent ethics and anti-corruption commission, ........ for purposes of ensuring compliance with, and enforcement of, the provisions of this Chapter.
Consequently, the EACC was established pursuant to Article 79, by the enactment of the Ethics and Anti-Corruption Commission Act of 2011. The Commission must set the tone early in the public's eyes and more so among public servants on what constitutes best practice in service delivery and consumption i.e., a code of conduct for everyone whether in private or public service and what it all means in light of national values and principals of good governance. In other words, the Commission must execute civic education and frequent public campaigns on how corruption looks like and what its evil effects are, and how to avoid and expose corrupt practices. Further to that, the Commission must diligently and fairly and without fear, enforce the code of conduct on integrity and anti-corruption.
To properly carry out its mandate of development and promotion of standards and best practices in integrity and anti-corruption, the EACC must first of all, familiarise itself with the systems, procedures and processes in all public offices and continuously monitor the same in order to
31. "....... detect corrupt practices and to secure the revision of methods of work or procedures that may be conducive to corrupt practices." (Ethics and Anti-Corruption Commission Act of 2011).
The Commission must cooperate with other Commissions, State organs and agencies that foster good governance, law and order. Hence, the EACC is a sort of master advisor to other Commissions and Independent Offices on the code of conduct within their jurisdictions. To this end, the Commission is empowered by Article 252 of the New Constitution to investigate any integrity and corruption issues that may be raised from time to time. Chapter 15 - Commissions and Independent Offices:
252. (1) Each commission, and each holder of an independent office— (a) may conduct investigations on its own initiative or on a complaint made by a member of the public;
Further to that, the EACC is mandated by the Act, to push for the prosecution of offenders and to recommend and advise on disciplinary measures to be taken against Public Service officers who fail the ethics test. Article 11 of the Act, excerpts:
11. (1) ....... the Commission shall— (d) investigate and recommend to the Director of Public Prosecutions the prosecution of any acts of corruption or violation of codes of ethics or other matter prescribed under this Act or any other law enacted pursuant to Chapter Six of the Constitution: (e) recommend appropriate action to be taken against State officers or public officers alleged to have engaged in unethical conduct;
The EACC Act of 2011, has expressly allowed the EACC, through the Courts, to recover, freeze or confiscate property that is proved to have been acquired corruptly or unethically:
11. (1) ....... the Commission shall— (k) institute and conduct proceedings in court for purposes of the recovery or protection of public property, or for the freeze or confiscation of proceeds of corruption or related to corruption, or the payment of compensation, or other punitive and disciplinary measures."
Some of the provisions of Chapter 6 that the Commission must seek to enforce compliance with, are bound to drastically change the status quo. For example, it was common practice in the past, for State officials to hold more than one jon - a clear conflict with their public positions. Going forward therefore, a State officer cannot hold 2 such jobs. Article 77 of the New Constitution:
77. (1) A full-time State officer shall not participate in any other gainful employment.
Senior public officers cannot be active political party operatives either as that may compromise their impartiality and independence in the discharge of their duties:
(2) Any appointed State officer shall not hold office in a political party.
The above twin provisions are designed to ensure there are no conflicts of interest among serving State Officers.
The EACC is expected to monitor financial dealings of State officers to assure that they do not receive 'thank you' gifts from the public or business community or keep foreign bank accounts in circumstance that are outside of the law:
76. (2) A State officer shall not— (a) maintain a bank account outside Kenya except in accordance with an Act of Parliament; ...... .
Finally, the EACC must keep a keen eye on the politically sensitive process of public recruitment with a view to ensure that such a process is based on and conducted purely on grounds of merit:
73. (2) The guiding principles of leadership and integrity include— (a) selection on the basis of personal integrity, competence and suitability, or election in free and fair elections; (b) objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices.