New Bill seeks to chip away Kinoti and Haji powers in corruption war

Director of Public Prosecutions Noordin Haji with Director of criminal investigations George Kinoti.
Director of Public Prosecutions Noordin Haji with Director of criminal investigations George Kinoti.
The Director of Criminal Investigations (DCI) and the Director of Public Prosecutions (DPP) will have limited powers in the fight against corruption if a Bill before the National Assembly becomes law.

This comes just days after the Deputy President William Ruto and politicians allied to him said at a rally that the mandate of fighting corruption falls under the Ethics and Anti-Corruption Commission (EACC) and not with the DPP’s or the DCI’s offices.

Sponsored by Kiharu MP Ndindi Nyoro, a Ruto ally, the Anti-Corruption Laws (Amendment) Bill, which has already undergone the First Reading in the House, significantly deals a blow to the DCI’s investigations of corruption related cases and clips the powers of the DPP, restricting him only to the prosecution of criminal matters.

If passed by the House and assented to by the president, investigations of all corruption cases will fall squarely under the EACC, leaving the DCI with just other criminal matters to investigate and recommend prosecution by the DPP.

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Leaders allied to the Deputy President have been persistent in questioning the jurisdiction of the DPP and DCI in investigating corruption matters, arguing that the EACC was the body mandated by the Constitution to probe allegations of graft.

The leaders have accused DCI George Kinoti of being used to settle political scores in the guise of fighting corruption, challenging him to restrict himself to other crimes and leave corruption cases for investigations by the EACC.

Friday, Homa Bay Woman Rep Gladys Wanga warned that the “owners of the Bill” were trying to stop the war on graft. “We know who the sponsor of the Bill represents, but we will fight any attempts at clawing back the achievements we are gaining now with the vibrant officers at the helm of investigations and prosecutions,” said Wanga.

Kinoti has defended himself against the accusations of bias, and insisted that his office had the mandate to fight corruption as a crime under the penal code.

This week, Kinoti said their supreme role as the national police service is to prevent and combat corruption. “And not only corruption, all matters of integrity, so in case of any doubt, I want to say, it is our role as police officers,” he said at the launch of Examinations Policy and Guidelines at the Kenya School of Government.

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But now it looks like the new Bill by Attorney General Kihara Kariuki, which largely amends the EACC Act of 2003 and the Public Officers Ethics Act, bars Kinoti and his team from venturing into cases of graft.

Zero tolerance

The two principal laws now being amended came into force when the Narc government came to power in 2003 under retired President Mwai Kibaki, as he sought to fight official graft under his administration’s banner of “zero tolerance to corruption”.

According to the proposed amendments, disciplinary control over public officers on matters corruption is placed on respective Commission under which the officers serve, with the EACC mandated to exercise this in majority of the state offices.

A new section of the Public Officers Ethics Act states: “The Ethics and Anti-Corruption Commission established under Article 79 of the Constitution shall be the responsible Commission for the following categories of persons.

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“All State officers; the Chief of Staff and Head of Public Service; the Comptroller of State House; any person appointed by the President to an office established under Article 132(4)(a) of the Constitution or under an Act of Parliament;

“The Solicitor-General; the Chief Registrar of the Judiciary; the public officers who hold the office of Ambassador, High Commissioner or other principal representative of Kenya in another country or an international organisation; (h) the Chief Kadhi and all kadhis.”

The new sections mean that it will only be the responsibility of the EACC to check on acts of unethical behaviour, including corruption, of all State officers.

The DCI has lately been waging the war against corruption, in the eyes of the public, even overshadowing the EACC that has the primary mandate over the crime. Recently, President Uhuru Kenyatta even directed anyone with evidence against corruption to take the same to “somewhere around Karura Forest” (where the DCI offices are located), indicating his trust on the office to handle the monster. Apart from checking on the adherence to ethics of State and public officers, the EACC is also given the sole responsibility of recommending that those under preliminary investigations “vacate office”.

While there has been a clamour on those under investigations to step aside, this has not been happening, with the lawyers arguing that there was no legal basis for such an act. Public officers have only been leaving office once they are formally charged in court. However, Section 62 of the Bill now compels those under probe for corruption to leave office temporarily for a maximum of 60 days, pending their investigations by the EACC. This period can however be extended through an application before the High Court by the Commission.

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According to the Bill, EACC will recommend for any officer to step aside when the Commission has established grounds to reasonably suspect that the State officer or public officer is likely to “conceal, alter, destroy, remove records, documents or evidence or intimidate, threaten or otherwise interfere with witnesses”.

“Where a State officer or public officer refuses or otherwise fails to vacate office within seven days of receipt of a notice under subsection (3), the Commission shall apply exparte to court for orders to compel the State officer to temporarily vacate office for sixty days,” states the proposed law.

The National Assembly yesterday invited the public to submit memoranda on the amendments to the Bill, although it said the Bill was only meant to prescribe a minimum penalty to act as a deterrence on those who engage in corruption.

National Assembly Majority Leader Aden Duale said it is not the first Bill being brought to the House.

“At some point, the former Attorney General Githu Muigai had okayed it, but I will oppose the Bill given that it will be unconstitutional to give an investigator prosecutorial powers, there will be no checks and balances,” said Duale.

Kiharu MP Ndindi Nyoro said this move was to increase penalties for the corrupt as a deterrence.

“I have also proposed that we open the less than 10 years’ imprisonment to be more than 10 years, even up to life sentence and those caught up in corruption proceeds to pay double what they stole,” said Nyoro.  

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William RutoDCIDPPCorruptionNoordin HajiGeorge Kinoti