Supreme Court ruling boosts graft war

The recent Supreme Court ruling that suspended the requirement by investigative agencies fighting graft to notify suspects before conducting searches on them is a plus in the fight against corruption.

The ruling comes after the Ethics and Anti-Corruption Commission (EACC) and the Office of the Director of Public Prosecutions (ODPP) had appealed an earlier appellate court ruling. The Court of Appeal ruling required the investigative agencies to notify corruption suspects about the information needed and give such people time to respond.

Had the Supreme Court upheld the earlier ruling, the fight against corruption would have been placed in the hands of graft suspects themselves, because they would determine the type of information to give to the investigators.

The Supreme Court ruling comes amidst the ongoing debate about the Conflict of Interest Bill 2019, which President Kenyatta recently directed the Attorney-General to craft.

The ruling is a shot in the arm for the lead investigative agencies fighting graft because some of the deeply entrenched corruption networks in the country often operate in secrecy.

Investigating some of the individuals associated with networks perpetrating graft, just like in any other crime, may require obscurity on the part of investigators because rarely do people indict themselves.

In the ongoing trial of Nairobi Governor Mike Mbuvi Sonko, for instance, we have witnessed some legislators who are supposed to uphold the law in overseeing operations within the devolved units turning to defend the very persons accused of graft.

As a country, we cannot shout about graft in public spaces but do the contrary when it comes to the actual war, where we are all required to combine our efforts.

Some critics have argued against the Supreme Court ruling on grounds of rights to privacy and human dignity. If this is a moral and/or legal argument, then they are erroneously closing their eyes and ears to the outcry about the rampant corruption. Perpetrators of corruption do not care about morality and/or legality of their actions.

The value of the Supreme Court ruling to the EACC as an institution is indispensable to the fight against graft. Perhaps to understand how effective this ruling is, we need to compare our anti-corruption agencies with the success story of Hong Kong’s Independent Commission Against Corruption (ICAC) in rooting out graft in the special administrative region of China.

One of the reasons for the successes of ICAC in fighting graft is its investigative powers, which we, Kenyans, need to emulate and entrench in our anti-graft war. Under the ICAC Ordinance, Section 10(3), the anti-corruption body does not always need a magistrate’s warrant to conduct private searches on persons being investigated for graft so long as it reasonably believes that the suspect could be involved in graft.

Should our anti-graft agencies be vested with similar investigative powers as ICAC? The answer to this will be clear once the Supreme Court makes a ruling in the case pending before it, in which the ODPP had appealed the Appellate Court ruling that the agencies must notify persons/entities being investigated before accessing and searching for evidence to support any graft cases against them.

The Supreme Court has given special cognisance to the circumstances under which Kenya is waging the anti-graft war and explicitly stated: “It is not in doubt that the fight against corruption and economic crimes is a matter of great public importance.”

Consequently, it has suspended the earlier ruling by the Court of Appeal on the matter.

Kenyans should not forget that there are many conniving characters who will always hide behind deeply entrenched corruption networks and the powers that be to defeat the course of justice, particularly in corruption-related investigations and court cases. These individuals have always politicised the fight against graft under the pretext that the war on corruption is lopsided and narrowly targeted at individuals and/or certain communities.

In addition, the anxiety exhibited by some of the critics of the ruling, mostly persons being investigated, are not only illogical but also an attempt to derail the investigative agencies from doing their work. Our investigative agencies are fully constituted in law and work apolitically. Give them the leeway to do their work.

Ms Benyawa is a freelance journalist. [email protected].