DCI and EACC have shared mandate to investigate corruption

Politicians have in the past demanded that investigations of corruption and economic crimes be carried out by the Ethics and Anti-Corruption Commission (EACC), not the Directorate of Criminal Investigations (DCI).

Some contend that such investigations are a preserve of EACC as an independent constitutional commission, while others argue that EACC has better institutional capacity to undertake these investigations.

Other arguments are that the police, through the DCI, cannot be entrusted with the investigative role in the fight against corruption because unnamed political actors are using them to politicise and weaponise the fight.

A plain reading of the Constitution suggests that the DCI and EACC have concurrent mandate to investigate corruption matters. Article 244 (b) mandates the National Police Service to “prevent corruption and promote and practice transparency and accountability”. The DCI is established under Section 28 of the National Police Service Act and it is under the direction, command and control of the Inspector General of the National Police Service.

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Functions of the DCI, as outlined in Section 35 of this Act, include undertaking investigations on serious crimes such as money laundering and economic crimes. Arguably, if the Constitution mandates the DCI to “prevent corruption” it follows that investigating possible corrupt acts necessarily falls within the scope of this mandate.

Therefore, interpretation of any Act of Parliament - including Acts detailing the functions of EACC- to suggest that the DCI has no role in investigating corruption, can only mean that such Acts are unconstitutional.

Investigative role

The EACC is equally mandated to investigate corruption and economic crimes and this springs from Article 79 of the Constitution that obligates Parliament to enact legislation to establish EACC to ensure compliance with and enforcement of Chapter 6 of the Constitution on leadership and integrity.

Article 252 further provides that constitutional commissions, which would include EACC, may conduct investigations on their own initiative or pursuant to a complaint from a member of the public. EACC’s investigative role is further defined in Section 11(1) (d) of the Ethics and Anti- Corruption Commission Act providing that EACC shall investigate and recommend to the DPP the prosecution of any acts of corruption, bribery or economic crimes.

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It is, therefore, apparent from the foregoing that the two institutions have constitutional and legislative bases to investigate corruption. The mandate given to the Office of the DPP further buttresses this point.

Under Article 157(4) of the Constitution, the DPP has power to direct the Inspector General to investigate any information or allegation of criminal conduct. It is not in doubt that corrupt acts are criminal in nature, and therefore, the DCI, which is under the direction, command and control of the Inspector General, can rightly investigate corruption matters.

Legal authority

Away from legal technicalities on the mandate of the two institutions and beyond the rhetoric, Kenyans simply want results in the fight against corruption. We have witnessed in the past botched investigations on corruption because institutions mandated to hold corrupt individuals to account failed to coordinate and were preoccupied with small-time turf wars.

This has included the absurd, where EACC and DCI conduct parallel investigations on the same matter. There is renewed hope, however, with institutions attempting a coherent approach to fighting corruption.

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A case in point here is the establishment of a Multi-Agency Team to coordinate the investigation and prosecution of the corrupt. The team comprises of the Office of the DPP, National Intelligence Service, National Police Service, the Financial Reporting Centre, EACC, KRA, KWS and the Immigration Department. Momentum should, therefore, be towards more effective collaboration among these institutions and not marking territory as the politicians are inviting them to do.

The police may have no moral authority to take a more prominent role in fighting corruption when they are consistently ranked among the most corrupt institutions in the country, but there is no doubt that they have the legal authority to do so.

Politicians are, therefore, advised to let the DCI and EACC fight corruption because the law, as seen above, allows them to do so.

As Chinua Achebe says, let the kite perch and let the eagle perch too. If one says no to other, let his wing break!

Mr Kahuthia is an advocate of the High Court of Kenya. [email protected]

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