DP graft case presents key lessons on institutional independence

A week ago, the Anti-Corruption Court allowed an application by the Director of Public Prosecutions (DPP) to withdraw a Sh7.4 billion corruption case against Deputy President Rigathi Gachagua.

The DPP cited lack of cooperation from the Directorate of Criminal Investigations (DCI). This, he said, made it untenable to mount any successful prosecution.

The Gachagua case stands out from those that the DPP has recently withdrawn. And it is neither because of the huge amount of money involved nor his political profile: It is because of the shocking revelations made before the court on how the DP became a subject of investigations.

In his affidavit, investigating officer Obadiah Kuria told the court that he was forced to charge the DP. If this is the case, it means there was no legal or factual basis to charge Mr Gachagua in the first place.

That lends credence to the sustained narrative by the then-Deputy President William Ruto during the election campaigns that the fight against corruption was weaponised.

Whichever way one looks at it, it’s difficult to fault the view that DCI fabricated corruption charges against perceived political dissenters.

DCI ‘investigated’ graft cases against Mr Gachagua, then-MP Aisha Jumwa (now a Cabinet secretary) and former Kenya Power CEO Ben Chumo.

One may ask, why was it deemed fit to have the cases handled by DCI and not the Ethics and Anti-Corruption Commission (EACC), the body established for that purpose? In my view, the answer lies in the independence status of the two agencies.

Unlike the DCI, EACC is constitutionally designed as a functionally independent institution. Article 79 provides that "Parliament shall enact legislation to establish an independent ethics and anti-corruption commission, which shall be and have the status and powers of a commission under Chapter 15".

The chapter provides for independent commissions and offices. Under Article 249, independent commissions, such as EACC, are subject "only to the Constitution and the law". In the discharge of their duties, they are not subject to the direction or control by any individual or authority.

Independent body

To ensure that investigative decisions are not made by individuals, the law provides for five commissioners and a CEO to collectively discharge its business. EACC is accountable to the people of Kenya, through Parliament.

In my view, establishing EACC as an independent body was meant to ensure that what befell Mr Gachagua does not any other citizen.

In governance, decision-making by boards or committees, as opposed to individuals, allows fairness and objectivity. Consequently, had the allegations against Mr Gachagua been reported to EACC, it is possible that they could not have met the threshold for any legal action.

Lest we forget, corruption is a complex white-collar crime shrouded in its collusive nature. The expertise required for its investigation, the propensity for weaponisation and the debilitating impact on society are part of the reasons countries establish specialised agencies, such as EACC, to deal with it. In Kenya, the law also provides for specialised anti-corruption courts to hear the cases.

In spite of the constitutional architecture for independence in corruption investigations, Kenya has other agencies--such as DCI and the Asset Recovery Agency (ARA), whose independence is not similarly insulated--duplicating functions vested in EACC. ARA is headed by a director who is answerable to the Attorney-General.

Given the independence required for objective anti-corruption law enforcement, there is a need to fix the functional overlaps that see agencies undertake similar functions with diverse approaches and standards. Needless to say, this may be a big obstacle in the quest to exorcise the demons of corruption from our motherland.

Although Kenyans may be comforted by the government’s apparent commitment to institutional independence, addressing such overlaps is essential for the much-needed efficiency and public confidence in the fight against corruption.

Mr Naibei, an advocate of the High Court of Kenya, is a governance analyst. [email protected]