Judge enriching anti-graft law

Justice Prof Nixon Sifuna is a breath of fresh air in the High Court. He is among judicial officers with a demonstrable appreciation of what the framers of the Constitution intended under Article 259.

It obligates judicial officers to interpret the Constitution in a manner that promotes its purposes, values, and principles, permits the development of the law and contributes to good governance.

The Anti-Corruption and Economic Crimes Division judge and former Moi University law professor has rendered decisive and progressive rulings that disturb status quo on diverse aspects, constituting progressive jurisprudence to last many years.

In the past year, he has developed new jurisprudence in at least six areas: The need for mandatory quarantining of assets under investigation or recovery until logical conclusion of cases; prohibition of suspects from accessing frozen assets until they are vindicated; guidelines for withdrawal of corruption cases; conduct of law enforcement officers; accountability of enforcement agencies; and guidelines for management of assets forfeited to the state.

I sample two of his precedent-setting rulings providing essential direction in the anti-corruption war. The latest was in EACC v Nahashon Wilson Kanani & 5 Others on February 7, 2024.

Theft of public funds

City Hall employee Nahashon Kanani, his wife and their four companies wanted the High Court to set aside orders obtained by the Ethics and Anti-Corruption Commission freezing Sh643 million assets pending investigations.

EACC wanted the assets forfeited to the government, arguing that, despite earning a monthly net salary of Sh55,866, Kanani had in five years accumulated Sh2.4 billion worth of assets, Sh643 million of which was unexplained.

Adopting a progressive approach, he ruled that allegations and suspicion of corruption and theft of public funds are very serious and must be attended to with seriousness, carefulness and thoroughness.

Equating corruption levels in Kenya to Stage 4 cancer, he said the fight requires firmness, zeal, vigour, resilience, patriotism, accountability, utmost good faith and even God’s grace. 

The judge advanced two important legal principles on asset recovery. First, what he called “the precautionary principle”:

Corruptly acquired assets

Assets or funds suspected to have been acquired through corrupt conduct should, pending comprehensive investigations, be quarantined merely on the basis of prima facie evidence, until the suspect is vindicated through the investigations or by a court of law.

Secondly, in “the indivisibility doctrine”, funds or assets frozen on account of suspicion of illegality or illegitimacy should be treated as one unit and wholly kept out of reach of the suspect until they are cleared.

Then, the assets no longer belong to the suspect but are held in trust for the people of Kenya. 

These will bolster the recovery of corruptly acquired assets, in which EACC has recorded notable success. 

Relatedly, in his ruling of January 31, 2024, Judge Sifuna clamped down on arbitrary withdrawal of graft cases and set some guidelines.

Anti-corruption landscape

While upholding a magistrate’s refusal of a bid by the Director of Public Prosecutions to withdraw a graft case involving Kenya Pipeline managers, he lamented that a laundry manner of prosecution practice was steadily, undesirably and notoriously taking route in Kenya and the courts have a duty to stop it; it is the duty of the court, not the parties, to determine innocence of the accused or sufficiency of evidence, the grounds commonly cited in applications to withdraw cases.

Clearly, whether by passion, gift of intellect or personal choice, the learned judge continues to stand tall in the anti-corruption landscape.

It is time he served the anti-corruption court full-time and not on secondment twice a week when he serves alongside celebrated anti-corruption judge Esther Maina.

Meanwhile, one wonders why, despite a huge backlog of cases, the graft court has only two judges.

Mr Wanjala is a lawyer with a passion for governance issues. [email protected]. @DavidWanjala75