Time up for big thieves

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By Alex Ndegwa

The reformed anti-corruption commission could soon have powers to prosecute, operate a detention facility, and demand explanation from individuals with sudden lifestyle changes, if new proposals are passed into law by Parliament.

These drastic proposals are contained in a draft Bill to establish the Ethics and Anti- Corruption Commission, the successor to the Kenya Anti- Corruption Commission.

In a warning shot to those who enrich themselves corruptly through scandals like Anglo Leasing and Goldenberg, the commission is seeking legal backing to undertake a lifestyle audit and seize ill-gotten property, even when it is registered through proxies.

The Kenya Anti-Corruption Commission Director PLO Lumumba. Photo: File/Nairobi

To demonise corruption, the commission will publish a list of shame in the Kenya Gazette and two national newspapers and submit the same to Parliament in an appendix to the annual report.

A public officer convicted for plunder will have their property forfeited to the State, irrespective of whether it is held within or outside Kenya, and irrespective of whether it is held in the convict’s name.

Unethical conduct

The anti-graft body could obtain a court order to probe a person, "reasonably suspected of corrupt or unethical conduct" and under investigation for corruption.

In the written statement the suspect should detail all property and the times at which it was acquired, and how property especially that acquired at or about the time of the suspected crime was committed.

The proposed law provides for forfeiture of unexplained asserts. Failure to convince the court the wealth was accumulated in a clean manner would result in an order to the person to pay to the Government an amount equal to the value of the unexplained assets.

The Kenya Anti-Corruption has hit a brick wall in trying to probe individuals with suspect lifestyles.

"The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets, including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favour of the State," the draft Economic Bill says.

And offshore wealth is no longer safe because the Bill seeks to legislate co-operation between the commission and foreign agencies to trace such assets.

To stop plunder of public coffers, the Bill proposes that a person convicted of corruption or any offence under the Act be disqualified from being elected or appointed as a public officer for 10 years after the conviction. The commission shall consist of a chairperson and six other members recruited by a selection panel and appointed by the President. The Secretary shall be the chief executive officer and would be recruited by the commission.

If the proposals become law, the current staff of the commission headed by PLO Lumumba would continue in office for their unexpired terms. Ongoing investigations and prosecutions by KACC would also transit to the new body.

Though the commission’s wish for prosecutorial powers could be granted, the Bill states it may institute criminal proceedings "in consultation with the office of the Secretary of Public Prosecutions".

The commission has been asking for powers to prosecute, citing delays whenever it hands over files to the office of the Attorney General. The AG was previously the only one who could institute a prosecution.

The far-reaching proposals also seek to have a prosecutor under the Act granted all the powers, rights and privileges of a public prosecutor.

"For the purposes of an investigation, the secretary and an investigator shall have all the powers, privileges and immunities of a police officer in addition to any other powers the secretary or investigator has under this Act," the Bill adds.

On detention, the Bill states: "The commission may detain a person in accordance with its powers, subject to such detention facility and the circumstances of the detention meeting all applicable legal standards in respect of the detention of an accused person."

To hasten recovery of looted assets, the Bill sanctions the commission to enter into out-of-court settlements with suspects.

In the deal to be registered in court, the suspect will be immune to prosecution in exchange for speedy admission of guilt, full disclosure, and surrender of all ill-gotten wealth.

The Bill sanctions use of special analytical or detection techniques and electronic surveillance in "the interest of justice" in cases under suspicion or investigation.

Exceptional circumstances

Also the secretary or an investigator would have powers to search premises and seize property during an investigation, but with a court warrant. However, there are exceptional circumstances in which the exercise would not require court clearance.

Similarly, suspects the commission consider a ‘flight risk’ would be compelled to surrender their travel documents.

The legislation also provides for immunity from prosecution in exchange for the subject of a probe to make "full and true disclosure" including helping nail bigger fish.

A public officer, who is under corruption investigation, shall be suspended, at full pay, with effect from the date when the commission notifies the appointing authority. For speedy investigations such suspension should not extend for more than three months.

But once an officer is charged in court they shall be suspended at half pay. But such an official on half pay shall continue to receive the full amount of any allowances.

The draft permits the commission to investigate and prosecute foreign officials or persons involved in corrupt missions as well as pursue proceedings under international treaties and conventions.

According to the draft law, public officers are barred from holding bank accounts outside the country and the commission would petition the court for the repatriation of money held in offshore accounts. The commission for the Implementation of the Constitution has finalised Bill. The legislation promotes values of leadership, ethics and integrity, prescribes measures for preventing unethical conduct, and combating corruption.