The IGG has no power to investigate a minister

By Peter Mulira [new vision]

The ongoing stand-off between the local government minister and the Inspector General of Government (IGG) which has spilled in the open is a clear demonstration of the need to balance the noble fight against corruption. This should be done with the principle of separation of powers in mind, where the three branches of government namely the legislature, executive and the judiciary are supposed to be independent of any control in the performance of their constitutional functions. According to reports, the IGG has tried to control the minister’s exercise of executive powers by stopping his plans for redevelopment of Naguru estate by a foreign investor following claims by sitting tenants that they had a prior complaint to the land which the minister’s action infringed. This raises the twin question as to whether the inspectorate of government has authority to investigate a minister’s action as well as the nature and role of the inspectorate of government. The constitutional role of the IGG is provided for under article 223 of the constitution and elsewhere the IGG is given a power amongst others “to investigate any act, omission, advice, decision or recommendation of a public officer or any other authority made in the exercise of administrative duties”. In addition, under Article 230 the constitution gives the IGG special power during the course of investigations “to arrest, prosecute or cause the prosecution in cases involving corruption, abuse of authority or of public office”. At first brush, the interpretation of these provisions would tend to give the impression that the IGG has unlimited powers over government officials, including ministers but on close scrutiny of the constitution, those powers are circumscribed in material ways. First and foremost the constitution does not give the IGG the power to overlap the three branches of government in her work. The functions of the IGG as enumerated in the constitution are limited to administrative actions of public officers which means that she cannot investigate legislatives of judicial acts. Secondly, the range of officials who can be investigated is also limited to “public officials” a term defined in the constitution to mean “persons holding or acting in any public office” where public office is defined as “service in a civil capacity of the government or of a local government”. However, not every person so employed is a public servant subject to the IGG’s power for article 257(1)(b) provides that “a reference to an office in the public service does not include a reference to the office of the President, the Vice-President, the Speaker or Deputy Speaker, a minister, the Attorney General, an MP or a member of any commission, authority, council or committee established by the constitution”. This means that among other things, the IGG does not have power to investigate or interfere in any way with the act or decision of a minister although surprisingly the Inspectorate of Government Statute in section 9 tries to extend the IGG’s jurisdiction even to the cabinet, parliament and a court of law. This provision is definitely null and void as being repugnant to a provision in the constitution. But this does not mean that a minister is only answerable to god. article 117 of the constitution specifically states that “ministers shall individually be accountable to the President for the administration of their ministries”. In doing her work, the IGG has taken the stand that her office is independent of anybody including the Attorney General as chief legal adviser to government. This view received a boost when in a recent case the constitutional court held that the inspectorate of government is an independent body which could even represent itself in courts of law. As a result, the IGG has instituted high profile criminal cases in courts in which she is represented by her own legal staff. Unfortunately, all this seems to be based on the wrong interpretation of the constitution! In coming to its decision, the constitutional court was interpreting the provision in the constitution which provides that “The inspectorate of government shall be independent in the performance of its functions and shall not be subject to the direction or control of any person or authority and shall only be responsible to parliament”. With respect, what is meant by this provision is that while investigating any matter, the IGG is free from any interference or direction of anybody and the provision does not constitute the inspectorate into a legal person with rights and duties in the same way say as the Bank of Uganda whose statute specifically provides that “the bank shall be a corporate body with perpetual succession…. ”. Besides, the provision interpreted by the constitutional court is used in the constitution almost word for word in respect of all offices created under it including the Public Service Commission, the Education Service Commission, the Health Service Commission, the Auditor General and the Director of Public Prosecution. If all these bodies took the stand that they were independent of all other government institutions, especially the office of Attorney General which meets all government legal liabilities, there would be chaos in the functioning of government machinery. One example of such chaos would be that the assets of such bodies would be open to attachments in civil litigation since they would not enjoy government immunity. Similarly, criminal cases initiated and prosecuted by the IGG’s staff are bound to be challenged as being null and void since prosecutions are the constitutional prerogative of the Director of Public Prosecutions or persons authorised by him under a statutory instrument. It is settled practice that the powers of the ombudsman as the IGG is called elsewhere are limited to investigation, reporting and recommending and do not include the decision to prosecute. Perhaps it is fitting to end by quoting the definition of ombudsman from the authoritative International Handbook of the Ombudsman: “The ombudsman is an independent and nonpartisan officer…. often provided for in the constitution, who supervises the administration. He deals with specific complaints from the public against administrative injustice and maladministration. “He has power to investigate, report upon, and make recommendations about individual cases and administrative procedures. He is not a judge or tribunal, and he has no power to make orders or to reverse administrative action.”

Bashir arrest does not have to wait
South Sudanese president Salva Kiir wants the International Criminal Court (ICC) to delay the indictment of Sudan president Omar el Bashir until the Comprehensive Peace Agreement (CPA) with the South has been implemented and a peaceful settlement in Darfur has been reached. Kiir has a point. Others have even cited ICC’s alleged double standards and the West’s perceived plan to split up Sudan as justification to delay the indictment. But there is another side. True, Sudan must remain a strong state and peace must return to the South and East. But hinging these to one man’s stay in power is simplistic. Firstly, the human rights violations in the two regions are partly rooted in the regime’s philosophy. It is defeatist to say those responsible for the problem are the ones with a solution. Secondly, Bashir is mortal; it is wrong to imagine that Sudan cannot stand without him at the helm. The Government of South Sudan has outlived the signatory to the CPA. The state of Sudan, the CPA and peace initiatives in Darfur can as well outlive Bashir. If Bashir’s indictment was to wait for peace to return to the two regions, are there guarantees that he would not delay the return of peace so as to delay his own indictment? Many have complained that international bodies are too slow; that they do too little too late to prevent genocide. The 1990-94 massacres in Rwanda and those in Bosnia (1992-95) are cited as examples where the UN should have moved against the leaders to prevent more deaths rather than waiting to do post-mortem. About 17,000 lives could have been saved in Bosnian had Radovan Karadzic (arrested this week) been indicted earlier. How many more people should be killed, starved or raped in Darfur before the ICC can come in? Nobody would derive pleasure from seeing Bashir behind bars at the ICC. But for ending impunity, preventing more human suffering and sending a warning to other sitting presidents, the ICC should be allowed to do its work. [new vision]

By PAUL REDFERN[daily nation]

Kenya seeking to be self-sufficient in energy production.
Government delegation tells UK investors coal and nuclear energy also to be exploited.
Hydropower current main source of electricity.
Kenya is looking for long-term investment in its energy sector, particularly the use of solar, wind and geothermal energy, a government delegation has told UK investors.
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The country is also keen to exploit coal and nuclear energy, a move that is likely to spark controversy.
Both Prime Minister Raila Odinga and Energy minister Kiraitu Murungi told potential investors in London that there was no reason why the use of nuclear energy could not become a reality in Kenya. Nuclear energy can be used to produce electricity and is considered a much cheaper source than hydropower, on which Kenya relies.
However, even hydropower is threatened because of unchecked destruction of water catchment areas, including the Mau Forest, which is the source of major rivers. Only last week, the inauguration of the Sondu Miriu power project was postponed after the water levels in the river feeding the turbines dropped due to cutting down of trees in the Mau.
Electricity charges in Kenya are among the highest in the region and they could increase this month when new tariffs take effect. The country has been trying to exploit coal deposits in Ukambani without much success. Recently, assistant minister David Musila, who is the MP for Mwingi South, said efforts to start coal mining in the area were being frustrated.
Industries which use coal in Kenya import it from South Africa and Botswana as local resources remain untapped.
Nuclear energy uses “utility-scale reactors” to heat water which in turn produces steam that is converted to produce electricity. Today, more than 15 per cent of the world’s electricity is generated from nuclear sources. However, this method has sparked controversy in countries like Libya and Iran which have been accused of using the technology to experiment with the manufacture of nuclear weapons. But in countries like Germany, the technology has been used to produce alternative energy alongside other renewable sources like solar and wind.
In Kenya, foreign direct investment rose from about Sh3.7 billion ($60 million) in 2006 to Sh5.3 billion ($85 million) last year. However, it is likely that this figure could drop significantly this year as investors watch Kenya recover from the effects of the post-election violence in which more than 1,200 people were killed and another 350,000 displaced.
According to government estimates, property worth more than Sh60 billion was destroyed in the violence. Tourism and other industries also suffered major blows and are yet to recover. The British government, which is supporting the conference dubbed Investing in the new Kenya, invited Mr Odinga and other key Government leaders for top level talks on how to revive the economy.

Top on the agenda
As part of the negotiations, Mr Odinga held talks with his British counterpart, Mr Gordon Brown, UK Foreign Secretary David Miliband and Secretary of State for International Development Douglas Alexander.
Kenya’s economy was top on the agenda of the talks which focused on how the country could overcome the challenges posed by the post-election violence.
Acting Finance minister John Michuki said that the latest statistics indicated that business had taken a substantial hit following the January and February violence sparked by the disputed presidential election results.
Mr Odinga said the cornerstone of the new economic agenda was to create a “one stop shop” to ensure that investors do not have to deal with various ministries before getting approval for their investment plans.