The constitutional mandate to prosecute belongs to the DPP and may be exercised by subordinates or people with statutory powers to prosecute. So the prosecutor with the constitutional mandate must at all times be able to control the quality of evidence.
The intention of the amendments in question might be to find a backdoor way to give the EACC the mandate to prosecute without going through the ODPP. That would be unconstitutional because the mandate to prosecute lies with§the DPP.
So effectively, the changes would aid corruption by removing the mandate of prosecution or investigations from the ODPP. If they take away the EACC's responsibility to report to the DPP, they are crippling the investigations process because the anti-corruption agency would have nobody oversighting them.
Even if the EACC were to gain powers to prosecute, people will go through the EACC prosecution, then move to the constitutional court and argue they were prosecuted by an unauthorised authority. The constitutional court will agree.
So essentially Parliament is looking for ways to institutionalise and insulate corruption. That is what the amendment does. Here I fault Parliament. Making law is not emotional, neither is is benevolent. Lawmaking must be logical and rational.
Has there been an assessment to know that the problem with corruption convictions is the weakness of the DPP? If that's the case, the Kenyan people should ask where is the baseline study.
As a legal practitioner, I know many corruption cases are lost because investigations were shoddy or compromised. In some large public corporations, such as the NYS, a large number of people are charged.
They take everybody to court and don't consider who bears the greatest responsibility and who can be used as a witness.
For me, that's a conspiracy between the EACC and the DPP. I have no doubt there is a problem between those two institutions in terms of potential or possible conspiracies to aid corrupt people.
Resolving that issue is not to separate their accountability mechanisms. What's needed is to strengthen the EACC's capacity to investigate creatively, objectively and as fairly as possible. However, what they are doing is effectively saying you can investigate — and the files can freeze.
The writer is a human rights lawyer