BY SAM ALFAN.
Graft suspects will have their assets investigated without prior notice being given to them.
The apex court ruled that the EACC is not required by law to notify them before the process can commence.
The supreme court Judges,deputy chief justice Philomena Mwilu ,Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u and William Ouko however ruled that EACC must conduct such investigations within the limits set by the constitution and other existing laws.
“We have already held that the commission is not required to give written Notice prior to commencing an investigation in all situations. We have also held that where circumstances obtain under Sections 26, 27 and 28 of ACECA, the commission has to issue written Notice in accordance with the stipulations therein,” said the Supreme Court.
EACC had argued that issuing written notice before the process can commence may prejudice the investigation process.
While dismissing Prof. Tom Ojienda claims that EACC violated his right for Investigating his bank accounts without informing him, the Apex court said the anti-graft agency was not bound to issue prior notice to Ojienda.
“The investigative actions of EACC cannot be categorized as administrative action within the context of Article 47 of the Constitution, there is no basis upon which the Court can hold, that Tom Ojienda’s rights were violated for failure to observe the requirements of the said Article,” said Supreme decision.
The Judges said that they found it difficult to sustain the declaration by the Court of Appeal to the effect that, EACC is inflexibly bound to issue Notice while conducting its investigations. When the agency is acting under its Police powers, it is bound by the laws pursuant to which the Police conduct their investigations and connected purposes.
The court was making a decision in an appeal filed by EACC and the Director of Public prosecutions Noordin Haji over a case filed by Kisumu Senator Tom Ojienda.
In the matter, Prof Ojienda obtained orders quashing warrants to investigate his accounts over claims that Sh280 million had been fictitiously paid to his accounts by troubled Mumias Sugar Company.
The EACC obtained warrants to investigate and inspect the said bank account in March, 2015 before a Kibera court.
The legislator filed a case before the High Court contending that the warrants had been issued without his knowledge as they were obtained and enforced secretly.
He therefore urged that EACC’s actions amounted to an infringement of his right to privacy, property, fair administrative action, and fair hearing.
He successfully got orders prohibiting the commission from further investigating his accounts and obtaining documents such as account opening documents, statements, cheques, deposit slips, telegraphic money transfers, client instructions, bankers’ books and or any other information relating to the account.
It was his argument that the appropriate forum to hear and determine any dispute regarding advocate-client relationship at the first instance is the Advocates’ Complaints Commission and or the Advocates Disciplinary Tribunal.
The decision was later upheld by the Court of Appeal in June 2019 forcing EACC and the DPP to move to the Supreme Court.
EACC maintained that they did not act against the law as the warrants were obtained pursuant to the provisions of the Anti-Corruption and Economic Crimes Act (ACECA), Sections 118 of the Criminal Procedure Code (CPC) and 180 of the Evidence Act.
The commission argued that investigations within its constitutional mandate is a preliminary step that does not pose any adverse threat to the rights of a person who is being probed.
Further, the court heard that the warrants were obtained through a judicial process and could only be quashed upon a finding that there were no reasonable grounds for granting them.
The DPP supported the appeal arguing that failure to issue such notice does not constitute infringement of the rules of natural justice.