Court's verdict spells major shift in investigations

Ethics and Anti-Corruption Commission (EACC) CEO Twalib Abdallah Mbarak during his vetting before the National Assembly Committee on Justice and Legal Affairs. [File, Standard]

A court has outlawed secret warrants obtained by investigators to facilitate surprise access to bank accounts and searches in suspects’ premises. 

Instead, investigators will be required to first notify a suspect about the information needed and give them time to comply. They will only resort to search warrants if the suspect does not cooperate. 

This is the import of a landmark decision by the Court of Appeal, which brings an end to the practice of warrants being secretly issued to investigative bodies by lower courts in matters that touch on, say, corruption probes.

But critics have warned that the new directive undermines criminal investigations, citing the folly of asking a suspect to volunteer information that may be used against them. The element of surprise, they argue, is crucial for a successful investigation. 

Appeal Court judges Roselyn Nambuye and Sankale ole Kantai decreed that in the event an investigative body wants to probe a person, it must first issue summons and give him or her a chance to furnish them with the required information before deciding whether to press charges or not.

According to the judges, it is only when the person defies the summons or fails to provide pertinent information that investigative bodies can seek the courts’ intervention.

The judges were determining a matter between the Ethics and Anti-Corruption Commission (EACC), Director of Public Prosecutions (DPP) and Senior Counsel Tom Ojienda.

This was after the EACC had obtained a search warrant against Prof Ojienda in relation to payments made by Mumias Sugar Company.

“The Legislature’s intention was for a person of interest or suspect to be aware of the intended action of EACC against him. It also intended for a person of interest to first be given a chance to voluntarily comply with a notice before any action is taken against him,” the judges ruled.

The ruling opens a Pandora’s Box, opening the way for victims of surprise searches to challenge the warrants.

Guarantee success

The EACC and DPP had maintained that getting persons of interest by surprise guarantees success in investigations.

But the judges faulted the parties by upholding Justice Isaac Lenaola’s finding that the EACC should first give a person of interest time to voluntarily comply with its notice, after which it can move to court to force the person to submit the required information.

In the matter before court, the judges heard that on March 25, 2015, Kibera Chief Magistrate issued warrants allowing the EACC to access and scrutinise Ojienda’s accounts held at Standard Chartered Bank in Nakuru.

At the heart of the probe was Sh280 million, which was said to have been paid to the lawyer by Mumias Sugar Company for legal services he allegedly had not rendered.

On learning about the probe, Ojienda filed a case before the High Court complaining that the EACC had not notified him before its investigators obtained a warrant.

The lawyer accused the anti-corruption body of abusing its powers as well as violating his right to privacy and fair administrative action.

Ojienda argued that he had been lawfully hired by Mumias Sugar since 2011 and had carried out his work for the firm as required by law.

He argued that payment of his legal fees was protected by law, adding that the privilege enjoyed by an advocate can only be waived with the instructions of a client.

“Since EACC had not demonstrated such waiver was accorded, it had no justifiable reason to breach privilege,” he said.

Ojienda also argued that the EACC lacked powers to investigate the alleged irregular payment of legal fees, adding that the matter could be determined by the Advocates Disciplinary Tribunal or the Advocates Complaints Commission.

The Law Society of Kenya (LSK) agreed with Ojienda, saying he ought to have been informed about the search.

The LSK, through Senior Counsel Nzamba Kitonga, faulted the EACC for its failure to summon Ojienda and request him to furnish it with his bank accounts statements before applying for the search warrants.

“On this occasion, they were bound to respect Ojienda’s right to privacy and human dignity,” argued Mr Kitonga.

But the EACC and the DPP opposed the court orders, saying there was nothing untoward about the warrants.

According to the State agencies, the EACC had a role to probe corruption and it had followed the right procedure by first obtaining a court order to clear the way for investigations.

The court heard that criminal investigations did not take the same routes of administrative processes.

The EACC and DPP also claimed that the success of an investigation often depended on the element of surprise.

Kitonga, who spoke with The Standard, commended the court for its decision. He said in some matters on confidentiality the court was right to order that notices be issued first.

People’s privacy

“Our argument was about advocate-client relationships. You know, clients do not want their information known. People like their privacy. If you open my account, you will see there are other people who have transacted. The judgment is good for advocates,” he said.

Lawyer Katwa Kigen was of the view that it was only fair for investigative bodies to presume persons of interest to be innocent until they find incriminating evidence.

“It is only when a person proves difficult that drastic action should be taken. To give effect to the presumption of innocence, investigating bodies should give a person of interest the opportunity to furnish them with information, documents or even gadgets,” said Mr Kigen.

But another lawyer, who sought to comment on condition of anonymity, criticised the judges saying the decision would hinder investigations.

“You will find that a judicial officer issues orders to ensure that the search is not arbitrary. You get to search in order to know. How then will you be able to find information if you tell a suspect or person of interest what you want and intend to do?” the lawyer posed.

DPP Noordin Haji said he would go to the Supreme Court, citing the impact the judgment was likely to have on ongoing cases.

Mr Haji’s statement was echoed by EACC Chief Executive Officer Twalib Mbarak. “We are appealing to the Supreme Court since we are dissatisfied with the findings of the Court of Appeal.”