Proposed law wants graft cases concluded in 2 years

Months after the Judiciary ruled that the lawless nouveau riche, who cannot explain the source of their wealth, will have no protection of the law, a new Bill before the National Assembly seeks to tighten the noose on the cartels, the State and public officers and to enforce Chapter Six of the Constitution.

In the new measures, contained in the Statute Law (Miscellaneous Amendments) Bill 2020 and which is signed by Aden Duale — the ousted Leader of Majority — the government now wants all the cases touching on corruption to be determined within two years from the time of filing.

Previously, there was no time limit on corruption, bribery and economic crimes offences thus allowing cases to run in the courtrooms for ages.

FOREIGN BANK ACCOUNTS

For years, State and public officers have been accused of operating offshore accounts and hiding their wealth abroad in tax havens. The proposed law now makes it a crime for such officers to operate foreign bank accounts without the approval of the Ethics and Anti-Corruption Commission (EACC).

 More so, State officers who operate such accounts will be required to submit annual statements to EACC. Failure to submit the accounts will attract a jail term of five years or a fine not exceeding Sh5 million, or both.

Also, State officers who fail to sign the Leadership and Integrity code risk losing their positions. The Bill proposes that any person can apply to the High Court to invalidate the assumption of office of a person who fails to sign the code.

The Leadership and Integrity Act is also set for change to enforce Chapter Six of the Constitution. The EACC will now verify the contents of the self-declaration and advise Parliament or the panel constituted for short-listing of persons for appointment as State officers on their financial integrity.

Section 14 of the Bribery Act is also set to be amended to allow “any person” — and not just those holding a position of responsibility — to report any suspected case of bribery to EACC. Previously, only State and Public officers — and those holding positions of responsibility within private firms — were lawfully required to make such reports to the anti-graft commission.

CORRUPTION

EACC will also get new powers to seek ex parte orders from the High Court barring appointed State officers under investigation or who have been charged with corruption or an offence of economic crime from accessing a public office or exercising specified powers.

This is where investigations will have established grounds to suspect that the State officer is likely to interfere with evidence, witnesses, or conceal documents.

The move will have deep ramifications since State officers in Kenya include the President, Deputy President; Cabinet secretaries, MPs, judges and magistrates and members of independent commissions.

The Bill further proposes that such suspended officers will be entitled to half pay and if their case is not concluded within two years they will apply for reinstatement to the trial court. While determining such a request, the bill proposes that the court will hear representations from the DPP and EACC.

In order to enforce Chapter Six of the Constitution on integrity, the committee of the National Assembly will now have powers over the President and Deputy President and Cabinet secretaries, the Speaker and Attorney-General and members of the independent offices and commissions.

The DP was previously excluded from the clause that only had the President, the Speaker, AG, members of the electoral commission, controller and Auditor-General and PSC.

Government will also scrap the colourless Kenya Anti-Corruption Advisory Board that was acting as the EACC’s advisor.

The EACC, which previously had limited mandate to initiate proceedings to recover corruption property or proceeds outside the country, will now be empowered.

For decades, corruption cartels have used a loophole in the tender system that allows tenderpreneurs to revise and adjust their prices after clinching a contract. To stop the practice blamed for spiralling corruption in the public sector, the bill proposes to amend the Procurement and Asset Disposal Act by introducing a new clause which states that the “tender sum as submitted and read out during the tender opening shall be absolute and final and shall not be subject to correction, revision, adjustment or amendment in any way by any person or entity.”

PUBLIC PROSECUTORS

This will not affect competitive negotiation, direct procurement and framework contracting, however.

Other proposals will empower the DPP and the EACC secretary to be members of the Anti-Money Laundering Advisory Board.

The Criminal Procedure Code will also change and the State counsels will no longer be recognised as public prosecutors. Instead, there will be a new position of a prosecution counsel.

Also the DPP had powers to vest some of his powers in the Solicitor-General, the Deputy Public Prosecutor, Assistant Deputy Public Prosecutor or a State counsel.

If the new bill passes, the DPP will vest some of his powers in the secretary, prosecution services, which appears to be a new position, the deputy DPP, senior assistant DPP, and prosecution counsel.