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Haji, EACC isolate Kinoti as fight for more clout rages

By Standard Team | July 13th 2020

EACC chief executive Twalib Mbarak, Director of Public Prosecutions Noordin Haji and Directorate of Criminal Investigations boss George Kinoti address a past press conference. [File, Standard]

A fierce power struggle has poisoned relations between anti-corruption agencies and now threatens to undermine one of President Uhuru Kenyatta’s legacy dreams.

Infighting among Multi-Agency Team (MAT) members has sucked in more players, pointing to a crisis initially highlighted by the feud between Director of Public Prosecutions (DPP) Noordin Haji and Directorate of Criminal Investigations (DCI) boss George Kinoti.

Two camps have sprung from the turf wars, with reports the polarised climate was evident last week when a virtual meeting of MAT members degenerated into harsh exchanges with one official reportedly telling off another that they were junior to them and terming the agenda of the meeting suspect.

One camp reportedly has Haji, Ethics and Anti-Corruption Commission (EACC) boss Twalib Mbarak, Financial Reporting Centre (FRC) director Saitoti Maika and Inspector General of Police Hilary Mutyambai who were plucked from the National Intelligence Service.

Formulate policy

The other has Kinoti, Attorney General Paul Kihara, who chairs MAT which is tasked with coordinating the anti-corruption war, and Assets Recovery Agency (ARA) Director Muthoni Kimani.

Sources said the Office of the DPP (ODPP) and EACC, which are now working closely after the DPP’s fallout with the DCI, pride themselves as the only autonomous institutions that report directly to Parliament hence their leaders should wield more clout.

Yesterday, Senate Minority Whip Mutula Kilonzo Jnr said reports that the MAT leadership is at war suggests the cases they are dealing with touch on high profile individuals.

Kilonzo Jnr asked the President to rein in MAT members arguing the infighting will undermine the war on graft. “The President should act. Though they are independent offices, he formed MAT through an Executive Order to ensure synergy in the graft war. He must intervene to end partisan wars,” said the Makueni senator.

Proposed changes to the law designed to hand the EACC more powers in anti-money laundering investigations and allow ODPP representation in an agency to formulate policy on anti-money laundering have triggered the spat. 

In a letter to the AG, Ms Muthoni protested that “the proposed amendments were not shared and/or discussed with the relevant stakeholders who implement the laws.”  

It emerged that a subsequent letter by the AG to National Assembly Majority Leader Amos Kimunya to shelve some proposals in the Statute Law (Miscellaneous Amendment) Bill 2020 to amend the Criminal Procedure Code, Evidence Act and the Proceeds of Crime and Anti Money Laundering Act sparked the bitter exchanges during the meeting.

“We further submit that our anticipated consultation is likely to affect the content of the Bill as far as the eight mentioned amendments are concerned,” the AG wrote.

It is, however, understood the ODPP, FRC and EACC are opposed to the new developments and want the amendments passed as is. 

There is also a feeling the AG, ARA and DCI have ganged up to undermine their counterparts at ODPP, FRC and EACC. 

The latest developments are likely to escalate the standoff between the ODPP and DCI over operations. Sources said the ODPP plans to inform Mr Mutyambai that all files emanating from the service should pass through his office.

DCI has been sending files directly to the ODPP for action without involving the IG’s office in an informal arrangement which was aimed at ensuring speedy processing of the cases.

The relationship between the DCI and the ODPP has deteriorated to an extent that some prosecutors who had been seconded to the DCI to help in perusing files before they are sent for action were recalled to Upper Hill, the ODPP headquarters. “The relationship is bad and we urge that the concerned parties solve them soon. Nothing is moving,” said an officer aware of the developments. 

Muthoni argued that the proposed amendment to include the EACC as authorised officers to implement the Proceeds of Crime and Anti Money Laundering Act “will be extending the commission’s mandate beyond what is provided for in the law as investigations on unexplained assets is already provided for.”

“Investigations into money laundering and proceeds of crime are initiated through intelligence, investigations by the DCI,” she explained adding “the Assets Recovery Agency is the institution authorised to recover all proceeds of crime and not the EACC whose mandate is limited to corruption and bribery.”

Muthoni also protested the proposal to include the DPP in the Anti-Money Laundering Advisory Board arguing that it contravenes the Constitution and “there is no justifiable legal basis for the DPP to sit in the Board whose role is to advise on policy.”   

Kihara wrote to Kimunya on July 9 asking him to shelve some of the proposed amendments and progress with the rest pending the outcome of consultations.

“It is with this in mind, therefore, that we are humbly requesting the National Assembly to isolate and shelf the eight amendments as you progress with the rest of the Bill pending the outcome of the consultations,” said Kihara in his letter.

He said MAT regrets the inconvenience of the planned delay of the amendments considering that the Bill has already been published and should be before the relevant Departmental Committee for action.

“However, we are of the respectful view that this is the best option in the circumstances to pave way for a comprehensive and more effective legal framework on matters relating to corruption.”

Kihara, in his letter, said the National Assembly has considered the amendments and elected to isolate and only include those that are keeping with the Bill and to process the remaining proposals in a separate Bill at a later stage.

Kimunya had notified the AG that he had received additional amendments proposed for inclusion in the Bill from the EACC and ODPP. This was after the offices of the ODPP and EACC had sent the additional amendments that the AG, ARA and DCI are opposed to.

The targeted Acts for amendment include Criminal Procedure Code (Cap 75), The Evidence Act (Cap 80), The Anti-Corruption and Economic Crimes Act, 2003, The Public Officer Ethics Act, 2003, The Proceeds of Crime and Anti-Money Laundering Act, 2009, The Counter Trafficking in Persons Act, 2010, The Leadership and Integrity Act, 2012 and The Bribery Act, 2016. 

Muthoni said in the course of investigations into money laundering and proceeds of crime, the DCI through court orders freezes assets of suspects where there is prima facie evidence of proceeds of crime, in the same manner as the EACC does during its investigations.

“The recovery of assets which are the proceeds of crime is provided for in Proceeds of Crime and Anti-Money Laundering (POCAMLA) while the recovery of benefits from corruption and compensation is contained in ACECA. The Assets Recovery Agency is the institution authorised to recover all proceeds of crime and not the EACC whose mandate is limited to corruption and bribery,” Muthoni said.

She further argued that ARA’s mandate as set out in the Act is to identify, trace, freeze, seize, and recover proceeds of crime as set out in law.

Muthoni said money laundering cases as stand-alone offences, therefore, can only be prosecuted if they are investigated by the police and not the EACC.

“The proposed amendment to Section 2 of POCAMLA to include officers from the EACC as authorised officers under POCAMLA is ultra vires the mandate of EACC and can be challenged in a court of law. The EACC should review its cases and if it identifies any gap in procedure, propose amendments to its legislation and not POCAMLA and any other law outside their mandate.”

She added that the proposal to include the ODPP in the Anti-Money Laundering Advisory Board (AMLAB) contravenes Article 157 of the Constitution which states the mandate of the DPP as a public prosecutor.

“The mandate of the ODPP is to institute, undertake and takeover criminal prosecution. There is no justifiable legal basis for the DPP to sit in the AMLAB, whose role is to advise on policy on Anti- money laundering. The drafters of the Constitution anticipated an office of the DPP which is independent under the Executive Arm of government,” she added.

She argued if the DPP is allowed to sit in an advisory board of the Financial Reporting Centre (FRC), it will be perceived as if the DPP is involved in financial intelligence and investigations which can be used to challenge prosecutions.

“The drafters of the Constitution also expected that there would be a separation of powers between intelligence, investigations and prosecution on transparency and accountability as envisaged under Article 10 on national values and principles of governance.”

According to Muthoni, the proposed amendments to also include the EACC in AMLAB is not justifiable as the Commission, receives financial intelligence reports on suspected corruption and acts on the same.

“To include the Secretary of EACC in the AMLAB Board will amount to extending the mandate of EACC beyond what is provided for under ACECA. The Mwongozo Code of Governance for State Corporations recommends for a maximum number of board members. The current composition of AMLAB is 11 members and to have two additional members will exceed the ceiling set by Mwongozo,” she added.

Muthoni argued that the Bill proposes amendments to insert Section 11(1)(j) to the EACC Act to recover proceeds of corruption located outside Kenya, which is superfluous because recover outside Kenya can only be done through mutual legal assistance under the Mutual Legal Assistance Act which designates Competent Authorities, who can request for and assist in mutual legal assistance through the Central Authority.

Domestic law cannot be stretched beyond our territorial jurisdiction to grant EACC powers to conduct proceedings in foreign jurisdictions.

“It should be noted that implementation of the Proceeds of Crime and Anti-Money Laundering is under the National Treasury, there is a National Task Force headed by the National Treasury, comprising of law enforcements agencies and private sector stakeholders which deals with issues regarding the implementation of Anti-Money Laundering strategies as recommended by FATF and ESAAMLAG the regional body who oversee Kenya’s compliance.”

Must be consulted

She argued the AG is in charge of legal policy and law reforms and his office must be consulted before any laws are amended and/or reformed to ensure that institutions responsible for enforcement are aware and capable of implementing the laws.

Kilonzo Jnr wondered why that the AG and Kimani would go against their joint submission before the Senate Justice and Legal Affairs committee seeking to have graft laws synchronised.

“The AG, DPP and Kimani appeared before the committee and presented a joint submission on proposals to synchronise the legal framework on graft war, including increasing fines for banks implicated in money laundering. It is quite unfortunate, MAT members have gone against this,” he said.

Homa Bay Township MP Peter Kaluma said National Assembly Speaker has committed the proposal to the Justice and Legal Affairs Committee.

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