EACC has powers to secretly probe suspect's bank account, apex court rules

Integrity Centre in Nairobi which houses the Ethics and Anti Corruption Commission offices.

Photo credit: Pool I Nation Media Group

The Ethics and Anti-Corruption Commission (EACC)  has powers to secretly investigate a suspect's bank accounts without giving prior notice, the Supreme Court has declared.

The judgment of the apex court has consequences on the fight against corruption and economic crimes in the country.

The court stated that it is not mandatory for EACC to always give prior notice to those it intends to investigate before commencing an investigation.

While ruling a seven-year legal dispute pitting Kisumu senator Tom Ojienda against the anti-graft watchdog over probe into an alleged Sh280 million payment to him by the Mumias Sugar Company, the top court said notifying the holder of the account depends on the circumstances.

The court stated that the Commission is not required to give written notice prior to commencing an investigation in all situations and failure to be notified is not a violation of right to fair administrative action.

“It all depends on what is at stake, the nature of the evidence required, and the urgency with which the said evidence must be acquired. In the circumstances, it cannot be said that the Commission must always give prior Notice to those it intends to investigate before commencing an investigation,” said the five judge bench led by deputy chief justice Philomena Mwilu.

The other judges in the bench were justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u and William Ouko.

They stated that when the Commission is carrying out a police operation or an intelligence gathering or asset tracing exercise, it cannot be required to issue a prior mandatory notice to the intended targets.

The judges overturned decision of the Court of Appeal to uphold a judgment by the High Court, which found that the EACC violated Prof Ojienda’s constitutional right to fair administrative action, in its investigations on his accounts.

The matter dates back to March 18, 2015, when the Chief Magistrate's Court in Kibera issued warrants for the EACC to look into Prof Ojienda’s bank accounts held at Standard Chartered Bank, Nakuru Branch. He was trading as Prof Tom Ojienda & Associates Advocates.

EACC alleged that Sh280 million was paid into Ojienda’s account advocate-client account by Mumias Sugar Company Ltd for legal services he allegedly had not rendered.

Aggrieved by this order, Prof Ojienda filed an application saying the EACC secretly, and without giving him notice, obtained warrants to look into his bank account.

He said the action was not only an abuse of the public power entrusted to EACC but also violated his right to privacy, property, fair administrative action and fair hearing as stipulated under  the Constitution.

It was Prof Ojienda’s contention that he was lawfully admitted into the panel of advocates of Mumias Sugar Company Ltd among other firms of advocates since 2011.

He said that he had always executed instructions received from the Company meticulously, diligently and with distinction; as a result he was entitled to all the legal fees charged.

He affirmed that to be the case in all his dealings with the Company and for that reason, EACC had no basis seeking for the warrants.

The High Court ruled in his favour by holding that EACC’s action was improper and that a person of interest in investigations ought to first to be given a chance to voluntarily comply with the notice before any action is taken against him. The finding was upheld by Court of Appeal.

“This was not done by EACC as it chose the easier general path of seeking warrants, instead of paying due regard to the preliminary steps required under its constitutive and operative statute,” said the Court of appeal. 

“In so doing, it infringed on Prof Ojienda’s fundamental rights and affected his interests, hence the learned Judge’s invalidating action, which we have no difficulty endorsing,” the court of appeal added in its judgement dated June 28, 2019.

Sets of laws

The EACC and the Director of the Public Prosecutions escalated the legal dispute to the Supreme Court, where the judges on Friday  held that EACC can apply different sets of laws and strategies in exercising its mandate under the Constitution and the law to combat Corruption and Economic Crime in our society.

For instance, the Commission may assume a law enforcement when conducting investigations into suspected corrupt conduct, effecting arrests of corruption suspects, disrupting corruption networks, and through the Office of the Director of Public Prosecutions, arraigning suspects before courts of law

Lastly, the Commission may assume an intelligence gathering posture, when for example it is tracing the proceeds of crime (asset tracing) with a view to recovering the same. It was held that the Commission can exercise police powers.

The court said that in exercising its mandate under the Constitution and the law to combat Corruption and Economic Crime in our society, EACC assumes different postures depending on the nature of the specific function it is carrying out.

It also stated that the investigative actions of the EACC cannot be categorized as “administrative action” as alleged by the lawyer.

“In the absence of proof of violation of his other fundamental rights and freedoms guaranteed by the Constitution, the disputed warrants ought not to have been quashed on the basis of this claim,” said the judges.

In the matter before court, the judges said it was difficult to sustain the declaration by the Court of Appeal to the effect that EACC is bound to issue notice in the conduct of its investigations.

“We cannot state with certainty that the EACC ought to have moved to court under Section 26 of Anti-Corruption and Economic Crimes Act because we have no information on record showing that the Secretary of the Commission had formed an opinion that the information sought was to aid or expedite the on-going investigation,” said the top judges.

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