Why element of surprise is critical in investigation of corruption claims
Kisumu Senator Prof Tom Ojienda. EACC and the Office of the Director of Public Prosecutions (ODPP) moved to the apex court following a decision of the Court of Appeal that the anti-graft agency had violated Kisumu Senator Tom Ojienda’s right to privacy for probing his bank accounts without giving him notice.
What you need to know:
- In executing this mandate, EACC assumes different postures depending on the nature of the specific function it is carrying out.
- EACC may assume an intelligence-gathering posture, when, for example, it is tracing the proceeds of crime with a view to recovering the same.
- If it is carrying out a police operation, intelligence gathering or asset tracing exercise, it cannot be required to issue prior mandatory notice to suspects.
The Supreme Court this month concluded an enervating seven-year legal battle on the question of whether the Ethics and Anti-Corruption Commission (EACC) should give notice to suspects or their associates before commencing investigations.
EACC and the Office of the Director of Public Prosecutions (ODPP) moved to the apex court following a decision of the Court of Appeal that the anti-graft agency had violated Kisumu Senator Tom Ojienda’s right to privacy for probing his bank accounts without giving him notice.
The origin of this suit extraordinaire that threatened to paralyse the operations of EACC and compromise all previous investigations undertaken by it was a complaint lodged before the agency alleging that Sh280 million had been fictitiously paid into Prof Ojienda’s advocate-client bank account by Mumias Sugar Company Limited.
EACC then obtained warrants to investigate the bank account on March 18, 2015. It was also alleged that the money was for services not rendered at the time the former Nairobi governor, Dr Evans Kidero, was the CEO of the sugar miller.
Being a senior advocate—a senior counsel— Ojienda was indubitably aware of his rights and, thus, aggrieved by EACC’s decision and subsequent court order.
He petitioned the High Court in 2015 complaining that EACC had, without notice to him, obtained warrants to investigate his bank accounts.
Right to privacy
He argued that EACC had not only abused its entrusted power by secretly obtaining the warrants but had also infringed on his right to privacy, property, fair administrative action and fair hearing enshrined in the Constitution.
Justice Isaac Lenaola, then a High Court judge, agreed with him and ruled that the impugned search warrants were illegally obtained and EACC had violated his constitutional rights. The court quashed them.
The cumulative effect of this judgment was far-reaching. Law enforcement agencies worldwide are empowered by the law to engage in covert operations for the purposes of obtaining and preserving evidence to be adduced in court during the prosecution of criminal cases.
In the absence of such powers, they remain lame ducks and the suspects may tamper with the evidence, conceal proceeds of crime or, in extreme circumstances, flee the jurisdiction to avoid arrest and prosecution.
Aggrieved by the judgment, EACC and ODPP moved to the Court of Appeal. But on June 28, 2019, the appellate court upheld the lower court’s decision on all issues and dismissed the appeal for lack of merit.
Basically, the court affirmed the position that EACC is bound to issue notice to a person before it commences its investigations against them.
EACC and ODPP proceeded to the highest court. EACC argued that it faced an existential threat, calling upon the court to make a decision that would go to the very body and soul of the law enforcement agency.
The Supreme Court judges, led by Deputy Chief Justice Philomena Mwilu, acknowledged that EACC has a wide and critical mandate under the Constitution and the law to combat corruption and economic crimes.
In executing this mandate, EACC assumes different postures depending on the nature of the specific function it is carrying out.
Thus, the EACC assumes a non-confrontational role when, for example, it is educating the public on the vices of corruption, conducting research into the nature of corruption or undertaking a system review of an agency with a view to sealing corruption loopholes.
But it may assume a law enforcement posture when conducting investigations into suspected corrupt conduct, effecting arrests of corruption suspects, disrupting corruption networks and, through ODPP, arraigning suspects in court.
Lastly, EACC may assume an intelligence-gathering posture, when, for example, it is tracing the proceeds of crime with a view to recovering the same.
The Supreme Court noted that, if the conditions so specified obtain, EACC may issue notice to the affected parties.
If it is carrying out a police operation, intelligence gathering or asset tracing exercise, it cannot be required to issue prior mandatory notice to suspects.
Mr Mbiti, an advocate of the High Court of Kenya, is an anti-corruption expert. [email protected]. @MwongelaMbiti
