BY SAM ALFAN.
Activist Okiya Omtatah has moved to court seeking a declaration that Director of Public Prosecutions (DPP) Noordin Haji is unfit to hold public office.
In the petition filed before the High Court, Omtatah accuses Haji of overstepping and abusing his powers when he entered into a plea bargain with bank officials accused of facilitating theft of millions from National Youth Service (NYS).
The activist alleges that the DPP usurped powers reserve for the judiciary, the Central Bank of Kenya and the Financial Reporting Centre by entering into plea bargain with suspects.
“The court be pleased to issue a temporary order prohibiting the DPP and their agents from entering into plea bargaining and deferred prosecution agreements, imposing fines on suspects and setting them free in lieu of the suspects being charged in court pending the inter-parties hearing and determination of the application,” says Omtatah.
He says that only the courts and regulators are allowed by law to impose fine to suspects. The DPP, he said has absolutely no power or mandate to do so.
Plea bargaining is a law enforcement tool that is only available where suspects have been charged in court and must only be deployed transparently and accountably under the court’s supervision.
“He did so when, in lieu of charging in court suspect banks accused of facilitating the theft of public funds through what has come to be popularly known as the second National Youth Service scandal (NYS II),” he said.
Omtatah said the DPP entered deals with the officials and fined the commercial banks some Sh721 million and set the institutions free after paying the money into the Prosecution’s Fund, which is established under section 45 of the Office of the Director of Public Prosecutions Act.
Omtatah says that there is no law that empowers the DPP to penalise banks.
“The establishment of the Prosecution’s Fund is illegal and in contravention of Article 206(1) of the Constitution. To allow confidential accounts by the DPP is to create room for rent seeking with no accountability,” the activist submitted.
According to the activist, under the law, plea bargaining deals and/or deferred prosecution agreements, between the prosecutor and suspects, can only be reached with the supervision of a court.
He adds that “Nowhere in the law does the DPP have the powers to enter into opaque deals with suspects (banks) and free them without accounting for his actions before a court of law,” he said.
Banks he said are regulated for anti-money laundering by the Central Bank of Kenya under the Banking Act (Cap 488), and by the Financial Reporting Centre under the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA).
The Central Bank is empowered under Section 33(4) of the Banking Act to issue directions to institutions with respect to the standards to be adhered to in the conduct of its business. Section 55 of the Act empowers the Central Bank to make regulations and prescribes the penalties to be paid by institutions that fail or refuse to comply with any directions of the Central Bank under the Act.
As stated in its Press statement of September 12, 2018, the CBK informed the public that it had imposed penalties amounting to 392.5 million shillings on the banks implicated in the NYS II scandal.
Section 24(B) of POCAMLA empowers the Financial Reporting Centre to impose civil penalties for non-compliance with any instruction, direction or rules issued by the Centre.
Further Omtatah says the DPPs Office is an independent constitutional office which performs an executive function and is wholly funded by the Consolidated Fund.
Hence section 45 of the ODPP Act establishing the Prosecutions Fund is and should be declared unconstitutional, he said.
“The monies in the Prosecutions Fund were not remitted into the Consolidated Fund as required by Article 206(1) of the Constitution and Section 17(2) of the Public Finance Management Act.
It is his view that violation of the principles of public finance under Article 201(a), (d) & (e) of the Constitution, the money in the fund should not be used opaquely at the discretion of the DPP as it happened when he dished some Sh 2 billion from the fund as a donation to the COVID-19 Emergency Fund.
In so far as it purports to give the DPP powers of tracing, forfeiture and recovery of assets, section 18 of the ODPP Act is unconstitutional and should be declared to be so.
The banks fined for their roles in NYS include Standard Chartered Bank (StanChart), Equity Group, KCB Group, Co-operative Bank of Kenya Ltd, and Diamond Trust Bank (DTB).
KCB was penalized the highest after it at was ordered to pay Sh149.5 million followed by Equity Bank at Sh89.5 million while Standard Chartered Bank will pay Sh77.5 million.
DTB was fined Sh56 million while Co-operative Bank was ordered to pay Sh20 million.
The five banks handled a total of Sh3.5 billion from NYS with StanChart handling the largest transaction worth Sh1.6 billion followed by Equity Bank at Sh886 million, while KCB processes Sh639 million.
