Anti-graft agency can't extricate itself from ODPP's grip easily

The Ethics and Anti-Corruption Commission (EACC) and some legislators, recently, renewed calls to grant it prosecutorial powers.

Incoming CEO Abdi Ahmed Muhamud wants EACC to investigate and prosecute economic crimes exclusively, without direction by the Office of Director of Public Prosecution (ODPP).

This demand is based on EACC’s claim of “special expertise” over economic crimes, alleged frustration with the ODPP’s record in prosecuting economic crimes and, apparently, because Article 157 (12) of the Constitution allows devolution of prosecutorial powers to bodies other than the ODDP.

Pursuant to Article 157 of the Constitution, the ODPP prosecutes all crimes in Kenya, including those investigated by EACC. While the Constitution creates EACC under Article 79, EACC’s main investigatory authority is derived from the Ethics and Anti-Corruption Commission Act, 2011.

EACC claims allowing it to prosecute will reduce ODPP’s case backlog. EACC further asserts it is best suited to prosecute what it has investigated.

A 2016 bill proposing prosecutorial power for EACC lapsed without debate. EACC chairman Bishop David Oginde suggests that the Director of Public Prosecutions can grant EACC’s wish by mere gazettement of EACC’s lawyers as prosecutors.

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This desire for independence from ODPP raises legal and constitutional questions. Article 157 (12) reads:

"Parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecutions."

Parliament has not enacted the statute because implementing Article 157 (12) is complex.

Does the Constitution envisage an EACC severed from ODPP? Does a constitutional question of conflict of interest arise when EACC prosecutes crimes it has investigated? Should EACC cede its investigatory role if granted prosecutorial authority?

EACC seeks to be a power unto itself, but the Constitution does not envisage such a powerful Commission alongside the ODPP. That is why although EACC is created by Article 70 of the Constitution its substantive power and operations are granted by a statute.

EACC is not among the Chapter 15 independent Commissions like the National Police Services which enjoy an elevated constitutional status in the hierarchy of commissions and whose authority cannot be supplanted by other offices or power conferred by a statute.

ODPP like all commissions under Chapter 15 is an independent office, yet under Article 157 (4) and unlike EACC, enjoys a unique authority over the National Police Service Commission.

Proponents of “give the EACC prosecutorial powers” fail to address the reason the Constitution is so structured or acknowledge that Article 157 (12) was not intended to enable EACC to supplant ODPP through statute.

If EACC acquires prosecutorial powers (under the current Constitution) through statute, it still remains under the authority of the ODPP per Article 157 (4), (6), (7) and (9) because ODPP will retain constitutional authority to direct police, under EACC, take over and terminate cases prosecuted by EACC.

To sever EACC from ODPP, Parliament would first amend the Constitution by deleting parts (4), (6), (7) and (9) of Article 157 or amend Article 255 to make EACC a Chapter 15 commissions, which requires a referendum. It is easier for Parliament to compel ODPP to perform its functions, effectively, than foist new duties and a bureaucracy on an EACC that has performed dismally in its primary mandate of enforcing public ethics under Chapter 6 of the Constitution.

In 2018 the Supreme Court of Kenya warned:

“It is an elementary rule of constitutional construction that no one provision of the Constitution is to be segregated from the others and to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and be interpreted as to effectuate the greater purpose of the instrument.”

Article 157 (12) ought to be interpreted alongside other parts of the supreme law with an appreciation of why the framers of the Constitution only sought substantive powers of the EACC under statute or the special reason the EACC is not a Chapter 15 commission.

The Constitution envisages an EACC that, primarily, enforces public ethics with controlled investigatory powers under statute to ensure it does not encroach, unreasonably, on the mandate of other commissions like the police.

Accordingly, EACC’s power to summon witnesses is circumscribed by Article 252 (3) of the Constitution and only permitted by statute.

This constitutional averts the rise of rival rogue prosecutorial agencies intent on emasculating the ODDP’s primary mandate. Granting EACC’s predatory wish will ignite a Pandoras box of similar demands by other bodies claiming, 'special expertise' and spark conflicting prosecutorial standards and engender turf wars among rival authorities.

In delineating EACC’s investigatory power in 2028 the Supreme Court warned:

“…in construing the provisions prescribing the constitutional and statutory mandate of the EACC… we are obliged not only to avoid an interpretation that clashes with the constitutional values, purposes and principles but also to seek a meaning of the provisions that promotes constitutional purposes…which advances rule of law…”

Without a constitutional amendment any statute germinating from Article 157 (12) can only grant very limited prosecutorial power under the ODPP’s superintendence.

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