A bid by an ally of Deputy President William Ruto to trim the powers of the Director of Public Prosecutions (DPP) to investigate and prosecute corruption cases has triggered a major political storm.
Kiharu MP Ndindi Nyoro, who is a member of Mr Ruto’s camp, sometimes informally referred to as Tangatanga group, wants to take away the DPP’s powers to determine the fate of investigations including terminating the same at any stage of the investigations.
He also wants the DPP to relinquish his role in leading any plea bargaining efforts with suspects.
All these powers, Mr Nyoro proposes, should be transferred to the Ethics and Anti-Corruption Commission (EACC), which will also be the only agency to carry out investigations into corruption and economic crimes if his proposals are adopted.
In effect, the DCI will also have been locked out of investigations.
The MP is proposing to amend the Anti-Corruption and Economic Crimes Act by inserting a new requirement that EACC “may exercise its discretion not to institute or continue an investigation if an allegation is found to be frivolous, vexatious or made in bad faith.”
As it is currently, once commenced, only the DPP can make such a call to drop the investigations at any stage.
There is also a proposal to have the DPP accountable to the Attorney General to whom he will be required to submit his office’s quarterly reports. The AG will then forward the same to Parliament. Currently, the DPP deals with Parliament directly as he is independent and not subject to the direction of the AG or any other office.
There have been earlier attempts in the era of former Attorney General Githu Muigai as well as his successor Paul Kihara to have similar proposals passed to give EACC more powers. However, in both instances, the attempts have failed. Homa Bay Town MP Peter Kaluma had in February also supported the idea of conferring EACC prosecutorial powers.
DPP Noordin Haji has protested against the attempts to take away his powers through parliamentary legislation, and was due to formally communicate his position regarding the proposals to Parliament. By Friday, Mr Haji’s office was drafting a protest letter to Parliament over the proposed amendments and the failure by the sponsor of the proposed changes to consult his office before coming up with the amendments.
Mr Haji will be informing Parliament of his opposition to the “offensive” proposed amendments and the need for adherence to Article 256 of the Constitution on amendment to the Constitution.
At EACC, officials said they were waiting for official communication before they can comment on the matter.
On the other hand, National Assembly majority and minority leaders Aden Duale and John Mbadi, respectively, have dismissed the bill as “unconstitutional” and a non-starter “brought by the Jubilee wing feeling the heat of the renewed anti-corruption fight”.
“I have been opposed to it and I still insist it is wrong. The powers of the DPP are anchored in the Constitution,” said Mr Duale.
As an independent office whose existence and powers are directly derived from the Constitution, disturbing the DPP’s mandate would require constitutional amendment, not through normal legislative functions of Parliament.
This makes Mr Nyoro’s proposed amendments to the Anti-Corruption and Economic Crimes (ACECA) almost as good as dead on arrival.
But the MP says he is not proposing to take over all the DPP’s powers. “There are so many other crimes the DPP is still left with. My proposal is only dealing with one — corruption and economic crimes — and the DPP can continue with the rest. The DPP still has so much work to do,” he said.
However Mr Mbadi says cherry-picking which crimes can be investigating by one agency is a recipe for chaos.
“Economic crime is a sub-set of criminal activities in general. Therefore no one can bar the DCI and DPP from investigating and prosecuting any crime,” said Mr Mbadi.
The ODM MP termed the efforts by Mr Nyoro “a waste of time.”
“I hope Kenyans will see it for what it is. The corrupt who are uncomfortable with the DCI are fighting back. As the Leader of Minority I will lead my troops in opposing it vigorously and I don’t think Kenyans should allow their MPs to derail the fight against corruption,” said Mr Mbadi.
According to Mr Mbadi, it is ironic that someone would think of giving EACC more power at a time Kenyans have been complaining of the inefficiency of the EACC.
“Now DCI has just been cracking the whip and no one should even think of taking powers from them,” he added.
The Kiharu MP says that his proposals are meant to streamline the fight against corruption.
“We have so many bodies doing the same thing — you have the police investigating, there is the DPP and then there is the DCI. At the end of the day, investigations are delayed because you are dealing with multiple agencies, all with their own bureaucratic structures. There is also the danger of the evidence leaking out and being diluted because of the multiplicity of players involved,” he said.
But as opposition grew to his proposals, Mr Nyoro on Saturday appeared to be doubling down.
“These are opinions that are now consolidating around this bill (Anti-Corruption and Economic Crimes (Amendment) Bill, 2019). What is concrete is the proposal for stiffer penalties,” he said.
The proposals, which the MP wants to run alongside his bill, the Anti-Corruption and Economic Crimes (Amendment) Bill, 2019, sits well with the Deputy President’s wing of Jubilee which has been critical of the DPP and DCI.
The Anti-Corruption and Economic Crimes (Amendment) Bill seeks to prescribe a minimum penalty for persons who are convicted of corruption. Mr Nyoro said that the new proposals to give more power to EACC was meant “to enrich the other amendment bill on penalties. It came later after I had crafted the one on penalties.”
Mr Ruto and MPs around him have accused the DPP and DCI of being used to further political games meant to block his path to the presidency in 2022.
On March 17, while speaking at Kapngetuny Primary School grounds in Kericho County, Dr Ruto accused DCI boss George Kinoti of being used to undermine mega Jubilee projects under the guise of ﬁghting corruption.
“I want to be clear that we fully support the ﬁght against corruption. But we will resist and reject any attempts to weave political narratives and propaganda into the projects in the name of ﬁghting graft,” Dr Ruto said.
On their part, some political leaders allied to the DP have been calling on the DCI to focus on robberies and other crimes and let EACC take charge of investigating corruption and economic crimes.
Senate Majority leader Kipchumba Murkomen has led the calls for the DCI to let EACC take charge of the investigations.
“We haven’t questioned the legal mandate of DCI, we are questioning the capacity of the institution and the professional competence of the office holder. Period!” Mr Murkomen has said.
Given Mr Nyoro’s political leanings, the proposals cannot escape being seen as coming from the Deputy President or people very close to him.
However, Mr Nyoro says he has not received any help or nudging from anybody.
“I have not consulted anyone in crafting this bill. I have always been consistent on having one body fighting corruption and having stiffer penalties.
“I don’t know how the Deputy President would be dragged into this matter. We do legislation for posterity not for transient things like current political innuendoes,” he said.