26th March” 2019
By Paul Musyimi, Advocate
Kenya was among the first signatories of the United Nations Convention against Corruption (UNCAC) upon its adoption on 9th December 2003.
Article 6(2) of the Convention imposes the mandatory requirement that each member country grants her anti-corruption authority the necessary independence to enable it “carry out its or their functions effectively and free from any undue influence.
Immediately after signing the UNCAC, we passed the Anti-Corruption and Economic Crimes Act (ACECA Act) which came to force on 2nd May 2003,
The ACECA Act (per its preamble), provides for the prevention, investigation and punishment of corruption, economic crimes and related offences.
It accords with the purposes of UNCAC (as stated in its Article 1) including promoting and strengthening measures to prevent and combat corruption more efficiently and effectively.
The ACECA Act established the Kenya Anti-Corruption Commission (KACC) as the main anti-corruption authority in Kenya until it was replaced by the Ethics and Anti-Corruption Commission (EACC) in 2011 established pursuant to Article 79 of the Constitution of Kenya 2010 which expressly requires Parliament to enact legislation to establish an independent Anti-Corruption body to align Kenya’s Anti-Corruption institutional framework with the binding provisions of UNC.
EACC, UNC exclusive Mandate in Graft War
Pursuant to Article 79, Parliament enacted the Ethics and Anti-Corruption Commission Act, No. 22 of 2011, coming into effect on 5th September 2011.
The EACC Act amended the ACECA Act removing all the provisions that established KACC but retained all the provisions relating to dethe finition of the corruption offences and economic crimes and their investigation. As the successor institution to the KACC, the Ethics and Anti-Corruption Commission (EACC) inherited the exclusive and unfettered mandate to implement the remnant provisions of the Anti-Corruption and Economic Crimes Act.
In particular, section 11(1)(d) of the EACC Act provides that EACC shall investigate and recommend to the Director of Public Prosecutions (DPP) the prosecution of any acts of corruption, bribery or economic crimes or violation of codes of ethics or other matter prescribed under the EACC Act, the ACECA Act or any other law. This provision entrenches EACC as the sole corruption and economic crimes investigations body in Kenya.
On the same day, the EACC Act was assented, asserted in 2011, the President also signed into law the National Police Service Act which came into force on 30th August 2011. This aw, among others, established the Directorate of Criminal Investigations (DCI) whose functions as per section 35 (b) thereof include undertaking investigations on serious crimes including economic crimes among others.
The DCI is also tasked with executing the directions given to the Inspector-General by the DPP pursuant to Article 157 (4) of the Constitution.
DCI has no Anti-Corruption Mandate
Noteworthy, while these laws were enacted by Parliament on the same day, only the EACC Act makes reference to and amends the ACECA Act.
Further, only the EACC Act places a mandate for investigation and recommendation to the DPP the prosecution of any acts of corruption, bribery or economic crimes under the Anti-Corruption and Economic Crimes Act… There is no mention in the provisions of the National Police Service Act on the role of DCI of a mandate with respect to investigations of corruption, bribery, violation of ethics or enforce the ACECA Act.
Indeed as proof that ACECA Act intends that EACC exercise the police powers in the handling of corruption and economic offences, secondary offences thereof states that Secretary and investigator of the EACC shall enjoy the powers, privileges and immunities necessary for the detection, prevention and investigation of offences relating to corruption and economic crime like the Police.
This can mean only one thing: the intention of Parliament as that of the framers of the Constitution was that the EACC enjoys the exclusive mandate of investigating and recommending of prosecution for corruption, bribery and economic crimes under ACECA Act.
If the DCI was supposed to have a mandate to investigate corruption or implement ACECA Act, why isn’t it provision not for? Indeed, the conclusion is inevitable that DCI only has a mandate to in the investigate economic crimes not provided for under the ACECA Act.
DCI Lacks Independence to Fight Graft
The logic for this is more than obvious: DCI lacks the independence necessary to spearhead investigation and recommendation of prosecution of corruption as required under UNCAC, which is binding as law in Kenya by dint of Article 2(4) and (5) of the Constitution of Kenya. In any case, DCI is subordinate to the Inspector General of Police as, as per section 28 of the National Police Service Act, it is under the direction, command and control of the Inspector-General who in turn answers to the National Security Council chaired by the President and may also receive policy directions in writing from the Cabinet Secretary in-charge of Security.
Only last week we saw the Internal Security CS making a roadside declaration that the directors of Eliza Sacco Eliza be investigated only for the DCI to call the founder of Eliza next daEliza interrogation. The susceptibility of DCI and IG to being given informal orders from above by Office of the President to investigate certain persons for political ends cannot be ruled out entirely due to the command structure of the disciplined forces.
The increased role of DCI in the investigation of corruption even without any provisions giving it a clear mandate in the fight against corruption revives the mischief that Article 79 and Chapter 11 of the Constitution aimed to cure in creating independent commissions like EACC. It opens the door for interference and meddling by the executive in anti-corruption on a crusade for political expediency including fixing real and assumed political adversaries.
Office of President can Arm-Twist DCI Director
As things stand, what stops the President, Cabinet Secretary and/or Permanent Secretary Internal Security from arm-twisting the DCI Director to investigate certain persons for corruption? Why should we undermine the mandate of an independent constitutional institution like EACC in preference for Presidents appointees and errand boys like DCI Director George Kinoti who are ready to ignore the law and the Constitution to please their masters?
With so many other unsolved crimes waiting in the DCIs in-tray, why should they be suffered to meddle without any legal basis or expertise in investigating corruption on the express and exclusive mandate of the EACC? If we feel the EACC commission as currently constituted lacks the necessary will to fight corruption, why not remove and replace the commissioners and their staff as per the Constitution and afford the EACC the political goodwill and independence to get the job done?
Lest we forget, the current imposition of DCI by the executive as the key corruption investigation agency is not the first for the police. In 1993, the Government established the Police Anti-Corruption Squad to fight corruption but it failed and was disbanded in 1995 and replaced with Kenya Anti-Corruption Authority (KACA) in 1997. After KACA was disbanded in the year 2000, the Anti-Corruption Police Unit was formed to continue the fight against corruption but it further proved ineffective and was replaced with KACC, the predecessor of EACC.
There is no gainsaying the DCI will not succeed where Police Anti-Corruption Squad and Anti-Corruption Police Unit failed because it lacks independence and is subject to undue influence and interference by the executive. It is time we recognize that the fight against corruption is so important to be entrusted to an individual or the executive and should be left to EACC which has the necessary independence to get the job done while respecting the rights and freedoms of corruption and economic crimes suspects.
The Author is the CEO of LEGAL360 ADVOCATES LTD, a Nairobi-based Boutique Law Firm