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Boost for EACC after court rules it does not require DPP consent to charge suspects

By Paul Ogemba | July 31st 2020

The anti-graft agency got a boost in its fight against corruption after a court ruled that it does not require consent of the Director of Public Prosecutions (DPP) to bring up a charge against a suspect.

A five-judge bench of the Court of Appeal ruled that an investigation report must not necessarily be presented to the DPP for approval before a suspect is presented to court to plead to the charges.

Their decision means that the Ethics and Anti-Corruption Commission (EACC) will be at liberty to present graft suspects for prosecution without seeking prior written consent from the DPP as has been the practice.

“Failure by the DPP to give a written content to prosecute economic crimes does not render the charges null and void. It is not illegal to charge a suspect with economic crimes before the investigations file is presented to the DPP for approval,” ruled the judges.

The appellate judges William Ouko, Martha Koome, Asike Makhandia, Agnes Murgor and Jamila Mohamed made the decision in an appeal filed by the EACC against a senior State counsel who was charged with soliciting a bribe.

James Makura, who was a senior State counsel based at the Attorney General’s office in Nyeri was charged in June 2011 for soliciting Sh50,000 as an inducement to recommend the prosecution of a suspect in case that had been referred to him by the Directorate of Criminal Investigations.

He, however, challenged his prosecution claiming that the EACC did not seek the AG’s written consent to initiate the prosecution.

High Court Judge James Wakiaga then ruled that EACC must seek the written consent of the DPP before instituting a criminal charge and went ahead to award Makura Sh100,000 as compensation for breach of his constitutional rights. 

But the appellate judges ruled that the High Court judge was misguided in finding that it is mandatory for the EACC to seek and obtain the DPP’s written approval before laying charges in corruption cases.


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