Court bars EACC from investigating state officers

The High Court has barred the Ethics and Anti Corruption Commission (EACC) from investigating employees of state corporations and parastatals.

According to the court, state corporations and parastatals are not offices in the public service as per the Constitution. 

Article 260 of the Constitution states that public office is an office in the national government, county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament.

The ruling was delivered by the three bench judges, Jessie Lesiit, Chacha Mwita and Lucy Njuguna. 

They argued that state corporations and parastatals generate their own revenue for expenditure and their funding is not directly provided by Parliament. This is based on the State Corporations Act.

According to the court, the constitution defines a public service as the collectivity of all individuals, other than state officers, performing a function within a state organ.

The Attorney General and the Kenya Revenue Authority (KRA) are also affected by the ruling. 

However, EACC boss Twalib Mbarak criticized the ruling arguing that it would give state officers leeway to become corrupt. 

“It means that those working for such corporations can claim to be exempted from requirements under Chapter 6. EACC may not be able to enforce the law against them until the decision is reversed on appeal,” Mbarak noted.

The Law Society of Kenya (LSK) President Nelson Havi seconded Mbarak's argument, adding that if those holding state offices were not held accountable, then the gains from public expenditure in the country would be lost.