March 6, 2006
Nairobi: The ongoing revelations of corruption at the heart of the Government pose the question: what will happen to the masterminds?
The statute that deals with corruption in Kenya is the Anti-Corruption and Economic Crimes Act. Under Section 2, it defines corruption as bribery, fraud, embezzlement or misappropriation of public funds, abuse of office, breach of trust and an offence involving dishonesty in connection with any tax, rate or impost levied under any Act. Or under any written law relating to the elections of persons to public office.
The principle institution that deals with investigations into corruption is the Kenya Anti-Corruption Commission. While the investigations are underway, the public have no access to the information unearthed.
But once the investigations are complete, and it is established that a crime has been committed, a report on the findings is sent to the Attorney General. Section 25 of the Anti-Corruption Act provides that KACC is obliged to investigate allegations filed. If it declines or discontinues its investigations, then it must inform the complainant in writing and give its reasons for this.
The KACC does not prosecute the perpetrators of corruption. This is done by the Attorney General. The commission sends a report to the AG on its investigations and includes a recommendation that a person be prosecuted for corruption. This is provided for under Section 35 of the Act.
Section 36 empowers the commission to make quarterly reports to the Attorney General, which he presents to the National Assembly. These reports provide information on the number of reports made. They also indicate whether KACC’s recommendation to prosecute was accepted.
The National Assembly, under Section 37, checks the Attorney General through annual reports that he prepares and presents. These contain information on the prosecutions.
They include KACC’s recommendations and whether they were accepted and, if not, the reasons why.
Once the Attorney General has decided to prosecute the alleged offence, the person involved is charged under the Act. Section 3 provides that a special magistrate appointed by the Judicial Service Commission tries any offence punishable under the Act.
This has given the Judicial Service Commission the power to appoint special magistrates. Corruption and economic crimes can be heard and tried only before these special magistrates.
The constitutionality of the special magistrates has, however, been questioned – whether it is a person or an institution. If it is an institution, it means that special magistrates are courts.
Parliament has been given the power, under Section 65 (1) of the Constitution, to establish subordinate courts. This has been done under the magistrates’ courts. The Judicial Service Commission cannot establish a court; this is the preserve of Parliament.
If the special magistrate is a person, it means that offences cannot be tried by persons. They have to be tried before a court. So, if the position of the special magistrate is illegal, there will be no court to try corruption offences.
The Act provides that the penalty for corruption and economic crimes is a fine not exceeding Sh1 million, or imprisonment for a term not exceeding 10 years, or both. But in the court process, it is irregular to mete out a custodial sentence to a first offender.
This may be seen as ironical because the Act was intended to make the consequences of engaging in corruption unbearable.
Other penalties include the recovery or forfeiture of unexplained wealth. Where the Commission adduces evidence on a person’s unexplained assets, this person shall be given the opportunity to challenge the evidence.
If the court is satisfied that all the assets concerned were acquired as a result of corruption, the person will be required to pay the Government an amount equal to the value of the unexplained assets.
The person who has been found guilty of corruption, or an economic crime, will be liable to the victims affected and will compensate them for the loss suffered. If a public officer is charged with corruption or economic crimes, they shall be suspended at half pay and shall continue to receive the full amount of any allowances.
However, if the public officer is convicted of corruption, they shall be suspended without pay. If upon appeal the decision stands, they shall be dismissed. Although this Act was meant to improve on the provisions of its predecessor, the repealed Prevention of Corruption Act Cap 65, it has numerous loopholes and does not adequately punish the offender.
In fact, the repealed Cap 65 did not provide an option of a fine, making the prison sentence mandatory. Will justice be seen to have been done?