Legal Challenges Undermine the War against Corruption in Kenya
By Edmond Pamba September 4, 2018
The fight against corruption in Kenya has gone into high gear considering recent anti-corruption purges spearheaded by President Uhuru Kenyatta and supported by opposition leader Raila Odinga. The country has had a history of anti-corruption legislations from the Prevention of Corruption Act of 1956, Amendment of the Prevention of Corruption of 1997, Anti-Corruption and Economic Crimes Act of 2003, Public Officer Ethics Act of 2003, Proceeds of Crimes and Anti-laundering Act of 2009 to Ethics and Anti-Corruption Act of 2011. These legislations primarily created institutions to fight corruption and criminalized acts that amount to corruption. Thus, the Ethics and Anti-Corruption Commission (EACC) and the Anti-Corruption and Economic Crimes Court were created to this end. However, despite these legislative milestones, legal challenges continue to derail the country’s fight against corruption. Consequently, this crime is still high in the country as indicated by Transparency International’s 2017 Global Corruption Perception Index which places the country at position 143 out of 180.
There is lack of demonstrable prosecutorial capacity with respect to corruption or economic crimes, especially those involving high profile individuals and grand corruption scandals such as Goldenberg and Anglo-leasing. Such cases have been dismissed on account of lack of sufficient incriminatory evidence. This is a failure on the part of the Office of the Director of Public Prosecutions (ODPP) for not conducting thorough forensic investigations necessary for solid cases. This challenge undermines the fight against high level impunity, and perpetuates the failure to safeguard public resources, redeem public officer ethics, secure public trust, and assert the rule of law by the ODPP.
Further, there is no strong penal code applicable to corruption. The most applicable penal codes under Cap. 63 of the Laws of Kenya (LOK) are in chapters 10 – Abuse of Office, 13 – miscellaneous offences against public authority, 30 – False Pretences, and 32 – Frauds by Trustees and Persons in a position of Trust and False Accounting, inter alia of the Penal Code. These applicable penal codes are thus weaker compared to those applicable to other crimes. For instance, Penal Code Number 127 (1) and (2) on Abuse of Office provide that,
(1) Any person employed in the public service who, in the discharge of the duties of his office, commits any fraud or breach of trust affecting the public, whether the fraud or breach of trust would have been criminal or not if committed against a private person, is guilty of a felony.
(2) A person convicted of an offence under this section shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding ten years or to both.
On the other hand, Penal Code Number 317 on False Pretences provides that,
Any person who conspires with another by deceit or any fraudulent means to affect the market price of anything publicly sold, or to defraud the public or any person, whether a particular person or not, or to extort any property from any person, is guilty of a misdemeanor and is liable to imprisonment for three years.
While Penal Codes relative to Frauds by Trustees and Persons in a position of Trust and False Accounting such as Penal Code Number 327(1) provides that,
Any person who, being a trustee of any property, destroys the property with intent to defraud, or, with intent to defraud, converts the property to any use not authorized by the trust, is guilty of a felony and is liable to imprisonment for seven years.
and Penal Code Number 328(a) and (b) provide that,
Any person who – (a) being a director or officer of a corporation or company, receives or possesses himself as such of any of the property of the corporation or company otherwise than in payment of a just debt or demand, and, with intent to defraud, omits either to make a full and true entry thereof in the books and accounts of the corporation or company, or to cause or direct such an entry to be made therein; or (b) being a director, officer or member of a corporation or company, does any of the following acts with intent to defraud, that is to say – (i) destroys, alters, mutilates or falsifies any book, document, valuable security or account which belongs to the corporation or company, or any entry in any such book, document or account, or is privy to any such act; or (ii) makes, or is privy to making, any false entry in any such book, document or account; or (iii) omits, or is privy to omitting, any material particular from any such book, document or account, is guilty of a felony and is liable to imprisonment for seven years.
Compared to Penal Codes on robbery and extortion, such as Penal Code Number 296 (1) and (2), which provide that,
(1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.
(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.
Penal codes relative to economic crimes are weaker and not commensurate to the potential impact of such crimes. While not justifying it, a robbery at a fish market, for instance, cannot cause as much impact on the economy as fraud in commercial companies or in critical government programs. For instance, cases of abuse of office and conspiracy to commit economic crime such as that adduced by the Director of Criminal Investigations on 16 August 2018 involving officials of Kenya Revenue Authority (KRA), Kenya Ports Authority (KPA) and Kenya Bureau of Standards (KEBS) in the loss of Ksh 100 Billion in tax evasion schemes of a span of six months alone, are more serious and deserve more punitive penal codes. This is in view of the impact of corruption on the economy of Kenya, the rule of law, public service ethics, and delivery of public services to Kenyans. In fact, on June 5 2018, High Court Chief Magistrate, Douglas Ogoti, while rejecting a bail application by all the 43 National Youth Service (NYS) corruption suspects (though the decision was overturned by the Court of Appeal), explained that, “it is the opinion of the court that it can lead to anarchy, threat to peace and national security. This a compelling reason why bail should and is hereby denied.”
Criminal procedure is another stumbling block in the fight against corruption in Kenya. The Criminal Procedure Code Cap. 75 of the Laws of Kenya, gives those accused of economic crimes (as in certain criminal cases) liberty until convicted. Section 123 (1) of the Criminal Procedure Code provides that a person may be released on bond or bail while still in police custody and before being charged in court. This provision is mutatis mutandis consistent with Article 49(1) of the Kenya Constitution 2010 which provides for release on bond pending a charge or trial. This procedure flows from the natural justice and human rights legal philosophy that informs Article 50(2) (a) of the Constitution, and Article 7(1) (b) of the African Charter on Human and People’s Rights relative to the right to presumption of innocence until the contrary is proved.
This criminal procedure is limited, but certainly applicable to economic crimes as provided by Section 123 (1) that,
When a person, other than a person accused of murder, treason, robbery with violence, attempted robbery with violence and any drug related offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that court to give bail, that person may be admitted to bail.
This provision thus, allows liberty to economic crime suspects despite the gravity of their crimes on the economy, socio-economic development, national values, leadership ethics, the rule of law and governance. In case of high profile or powerful individuals suspected of economic crimes, this bail can translate to the liberty to interfere with witnesses or to obstruct justice altogether. On 6 June 2018, the Director of Public Prosecutions besought the Court not to grant bail to former NYS Inspector General, Richard Ndubai on grounds that, “majority of the witnesses set to testify in the cases against the accused person were his juniors who worked were under him, hence a very high likelihood of interference and intimidation of the witness.”
Kenya has achieved a milestone, at least in principle, with regard to witness protection by creating the Witness Protection Agency (operationalized in 2008) through Witness Protection Act Cap. 79 of the Laws of Kenya. However, in reality, witness protection still presents a legal challenge to prosecution of economic crimes in the country.
The witness protection program for instance was established under the office of the Attorney General, thus compromising its statutory independence since the security of incriminatory evidence against powerful state officials cannot be guaranteed – in fact, Attorney General is the chairman of the Witness Protection Advisory Board. For instance, though it happened before the agency was set up, John Githongo, the whistle-blower of the Anglo-leasing scandal that involved a loss of USD 770 Million, fled to exile in 2005 citing threats to his life. The scandal involved high level government officials.
A conflict of interest also haunts this agency and program where police and judicial officials are involved in economic crimes, since the National Police Service and the Judiciary are partners of the Witness Protection Agency. According to a report by Transparency International released in 2017, the police and the judiciary came first and third respectively on the list of most corrupt institutions in Kenya and this automatically does not augers well with the functionality of the agency.
The Way Forward
To address these legal challenges, the Office of the Director of Public Prosecutions (ODPP) should constitute an internal independent forensic investigation unit, broaden, and deepen its strategic partnership with the Directorate of Criminal Investigations (DCI), the National Police Service, the National Intelligence Service, and other relevant agencies. This will help the ODPP to form solid cases and ensure successful prosecutions that will even win public trust for prosecutorial agencies and the judicial processes.
The High Court, through its Judicial Review division, should review previous economic crime cases in a manner that improves the criminal procedure relating to criminal procedure to economic crimes. It should also establish precedents on corruption cases for advancement of common law in Kenya, especially with respect to economic crimes. Such precedents should be punitive enough to demotivate Kenyans from engaging in economic crimes and re-align Kenya’s moral fabric with the country’s national values entrenched under Chapter 10 of the Constitution of Kenya 2010. It will also make public service transparent, ethical, and accountable.
The National Assembly or Parliament should review Kenya’s Penal Code Cap. 63 or enact a new penal code for economic crimes. The National Assembly should by so doing, aggravate the degree of economic crimes so as to warrant more punitive penal codes. Parliament should also review the criminal procedure relative to economic crimes, so as to expedite such prosecutions and impose justifiable limitations to procedural discretion.
The judiciary should do an integrity audit on its officials and bind them over Chapter 6 of the Constitution on leadership and integrity, and over Leadership and Integrity Act of 2012. Lastly, the Witness Protection Program needs to be re-evaluated to eliminate conflicts of interests from obstructing justice and to secure statutory independence of the Witness Protection Agency. Witnesses are crucial in criminal cases from the point of whistle blowing to trial, and thus, thus safety, uncompromised veracity and confidence, is key in the war against graft as it may be, to addressing legal challenges facing the cause.
John Pamba is a Research Assistant at the HORN Institute.