Bill gives Kacc teeth, outlaws accounts in foreign banks

The era of stashing public funds abroad by top government officials will come to an end if a Bill to transform the anti-graft agency into a powerful outfit is passed by MPs.

The Bill, which is at the final draft stage, proposes to make it an offence for public officers to open bank accounts outside Kenya and at the same time give the new agency powers to prosecute suspects without seeking permission from the Director of Public Prosecutions (DPP).

The two are among a raft of proposals to give the Kenya Anti-Corruption Commission (Kacc) teeth in line with the new Constitution to fight corruption and instil integrity in the Public Service.

The final draft Bill, which will also rename Kacc to the Ethics and Anti-Corruption Commission (Eacc), is now at the Attorney- General’s chambers where it is being tailored to fit the Kenyan style of drafting laws before being taken to the Cabinet for approval.

And on Thursday, Justice and Constitutional Affairs minister Mutula Kilonzo will table before a Cabinet meeting, the Supreme Court Bill and the Independent Offices Bill for approval as the government rushes to pass legislation required in the implementation of the new Constitution.

Perhaps driven by the reluctance of foreign countries to assist in the recovery of billions of shillings that have been stashed in accounts abroad by former top government officials, the drafters of the Bill sought to strike the vice at its source by making it illegal for public officers to hold bank accounts abroad.

“Any public officer, in contravention of this Act or any other Act of Parliament making for such provisions, opens a bank account in a foreign country or operates or maintains such account shall be guilty of an offence,” the Bill states under Section 76.

A report by the Kroll Associates who were commissioned by the government in 2003 to investigate the amount of money that was moved out of the country by top officials of previous regimes found that at least Sh83 billion ($1 billion) had been stashed abroad.

Government efforts to recover the money that was held in foreign accounts either by the top officials, their family members, business associates or dubious companies have failed partly due to the failure by the foreign countries to cooperate with Kenya.

That is why the Bill says: “It (the offence) shall apply to bank accounts opened, maintained or operated by the public officer directly or indirectly through dummies, nominees, agents or business associates.”

The courts will be required to order the repatriation of the money and held in the commission’s account as they investigate the manner in which it was acquired.

Also proposed as offences are embezzlement of donor funds, money held in trust, illicit enrichment, cheating on public revenue and dealing with suspect property.

Apparently, prompted by the slow pace or the failure by Kacc to readily take to court top government officials suspected to have engaged in corruption, the drafters of the Bill choose to hand the new commission direct powers to prosecute corruption suspects instead of waiting for consent from the DPP.

“The commission may institute criminal proceedings against any person or body in respect of any offence under this Act,” it proposes under Section 9.

Successive heads of Kacc have sought refuge in the lack of prosecutorial powers to escape the failure to prosecute key people in government mentioned in corruption scandals.

The current Anti-Corruption and Economic Crimes Act that established Kacc required the commission to hand over its findings to the AG who will either give consent for prosecution, refer the file back to the commission for investigations or reject the recommendations.

It says in Section 35: “Following an investigation the commission shall report to the Attorney-General on the results of the investigation.

“The commission’s report shall include any recommendation the commission may have that a person be prosecuted for corruption or economic crime.”