NAIROBI: Some of the high-profile corruption cases investigated by the anti-corruption agency last year risk failing after the High Court declared that it was not properly constituted.
Justice Joseph Onguto ruled that the investigations by the Ethics and Anti-Corruption Commission were unconstitutional and illegal, given that at the time, it lacked the constitutional capacity to undertake the investigations in the absence of commissioners.
"While the absence of commissioners did not render the EACC extinct in terms of its corporate features, its core function of investigating economic crimes and prosecuting offenders had to be dormant until properly reconstituted," ruled Onguto.
The judge made the decision in a case in which Busia County Government had challenged EACC's powers to search and seize its office equipment on September 4 last year over allegations of misappropriation of funds.
According to the judge, the EACC had no powers to initiate investigations of its own motion or through directions from any other person unless requested by the Director of Public Prosecutions and that their search and seizure of the county's equipment was null and void.
Onguto, however, ruled that his decision cannot stop EACC from commencing fresh investigations now that it has commissioners.
"The EACC is now properly constituted and nothing would stop them from commencing the investigations afresh. The previous investigations must and cannot however be binding on the Director of Public Prosecutions," said Onguto.
EACC went without commissioners from May last year when the then Chairman Mumo Matemu opted to resign instead of facing a tribunal that had been appointed to investigate his conduct.
Mr Matemu and his deputy Jane Onsongo were suspended in April last year after the National Assembly approved a petition to remove them from office.
The commission remained without commissioners until January this year when Philip Kinisu, Dabar Maalim Abdi, Paul Mwaniki Gachoka, Sophia Lepuchirit and Rose Mtambo Macharia were sworn in.
The high-profile corruption cases investigated by the EACC during the six months it operated without commissioners included those against Cabinet secretaries, governors and Members of Parliament.
Those investigated and charged were former CSs Michael Kamau and Charity Ngilu, governors Godana Doyo (Isiolo) and Nathif Jama (Garissa), MPs Alfred Keter, Sonia Birdi, Richard Onyonka and Julius Ndegwa.
In the Busia case, the county government said that EACC officers raided its offices on September 4, 2015, carted away documents and equipment and in the process paralysed all its operations.
The commission had obtained warrants from a magistrate to search the offices over allegations that Busia Governor Sospeter Ojaamong had colluded with senior officials to defraud the county government.
Although the judge said EACC had no powers to investigate the county government, he added that their actions did not paralyse operations of the county government since the search warrant was issued by an independent magistrate.
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"I do not view it that the investigations were unreasonable to deserve condemnation. Neither do I also view it that the actions of carting away the equipment paralysed the county's operations," the judge said.
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