More than 200 high-profile individuals suspected of corruption can now breathe easy following the anti-graft commission's failure to appeal a crucial court ruling.
A decision by High Court Judge J L Onguto on September 7 nullifying investigations undertaken by the Ethics and Anti-Corruption Commission (EACC) when it operated without commissioners last year, has opened a wide door of freedom for the big fish suspected of involvement in corruption.
Three months later, the EACC is yet to appeal the decision despite admitting that it has “negatively impacted” its operations.
“The ruling has negatively impacted our investigations because we are formally barred from using information recovered during the time when there were no commissioners,” EACC Deputy CEO Michael Mubea told The Standard on Sunday.
Those saved by the agency’s failure to appeal includes almost all the names tabled by President Uhuru Kenyatta in Parliament during his State of the Nation address on March 26, 2016 and whose cases or inquiries are still active.
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Former EACC Chairman Mumo Matemu (chair) and commissioners Irene Keino and Jane Onsongo resigned on May 12, April 30 and March 12 respectively.
The agency put up without commissioners until January this year when Philip Kinisu, Dabar Abdi, Paul Gachoka, Sophia Lepuchirit and Rose Mtambo Macharia were sworn in. Kinisu has since resigned and a hunt for his replacement is ongoing.
While Mubea was categorical that EACC had appealed the decision, the commission’s legal affairs directorate contradicted him and said they only filed notice of appeal.
“We filed the notice of appeal as we are still pursuing the proceedings to enable us file a substantive appeal,” a source at the Directorate of Legal Affairs said.
Three months would seem too long a time to get the proceedings for a judiciary which is bubbling in plethora of reforms including automation of court systems, enhanced accessibility of judicial officers and improved transparency.
The role of the EACC secretariat in slow-puncturing the fight against grand theft has come under increased spotlight in the recent past. Last month, President Uhuru Kenyatta openly complained that EACC CEO Halakhe Waqo deceived him into sacking his ministers.
When he tabled the names in Parliament last year, the President said the confusion within the commission at the time was contrived for a purpose: “The EACC is now embroiled in infighting and finger-pointing, a state of affairs likely to cripple the investigative capacity of the institution with the likely outcome of subverting the course of justice.”
In tandem with President Kenyatta’s premonition, Justice Onguto, in his ruling, said EACC lacked full investigative capacity in the absence of the three commissioners. The secretariat, he said, could not on its own motion purport to perform the core function of the commission.
In the landmark case, the Busia County Government led by Governor Sospeter Ojaamong had gone to court seeking to invalidate an EACC raid conducted at their premises on September 2, 2015.
“While the absence of the commissioners did not render the EACC extinct by virtue of its juristic corporate features, in so far as its core functions of investigating economic crimes and recommending the prosecution of offenders was concerned, it had to be dormant until properly reconstituted or assisted through the Director of Public Prosecutions,” Justice Onguto said.
The judge claimed he was in no way paralysing the fight against graft. In the absence of EACC commissioners, the judge said, the DPP can direct or assist EACC in undertaking its investigatory role.
“The EACC is now properly constituted. Nothing would stop the EACC from commencing the investigation afresh. The previous investigations must and cannot however bind the DPP,” Justice Onguto ruled.
Onguto relied heavily on the judgment of an earlier case filed by former Cabinet Secretaries Michael Kamau and Charity Ngilu. Onguto himself sat in that judgment alongside judges Mumbi Ngugi and George Odunga.
“In our view, the recommendations arising out of the investigations of the commission, which is one of the commission’s core mandate, cannot by-pass the commissioners and be transmitted directly to the DPP by the staff...the ultimate decision as to who ought to be recommended to be charged must rest with the commission members who are the commissioners,” the three-judge bench had ruled in March.
Yesterday, President Uhuru Kenyatta’s advisor on Constitutional and Legal Affairs Abdikadir Mohamed said the two judgments are wrong and formed a bad law. He told The Standard on Sunday that judges should not interpret the law “as if they do not live in this country.”
“It is a bad decision and it should be appealed and overturned,” Abdikadir said.
He admitted that the country was not doing well on corruption: “Collectively, we are not doing well, starting with the institutions charged with the responsibility. The last thing we need are decisions which sink us further into abyss.”
Apart from Ngilu and Kamau, other key personalities placed in direct benefit by the two decisions include ex-CS’s Felix Kosgey, Kambi Kazungu, Davis Chirchir, Senators James Orengo and Johnson Muthama, Governors Samuel Tunai, Godana Doyo, Isaac Ruto, Okoth Obado, Cyprian Awiti, Alfred Mutua, Amason Kingi, Evans Kidero and Peter Munya.
Others are former PS Nduva Muli, former chief of staff in the office of the deputy President Marianne Kitany, Johnstone Kavuludi of the National Police Service Commission, former Chief of Staff in the Office of the Prime Minister Caroli Omondi, MPs Alfred Keter, Sonia Birdi and Ababu Namwamba. A number of them were subsequently cleared by either EACC or DPP while many are still fighting to clear their names.