•Concerted efforts have been put in place to ensure that the war against corruption will be won.
•It is incumbent upon the judiciary to breathe life into the various pieces of legislation that are in place.
The Supreme Court of Kenya on April 30 made a progressive judgment in Petition No. 21 of 2019 Stanley Mombo Amuti Vs Ethics and Anti-Corruption Commission.
Such a decision is highly welcomed as it was long over-due. Corruption has been defined as cancer that kills our economy, Kenya loses a third of her budget to corruption annually.
Concerted efforts have been put in place to ensure that the war against corruption will be won. At the centre of the fight against corruption is the Judiciary, like a third arm of government, its importance cannot be underscored enough.
It is incumbent upon the judiciary to breathe life into the various pieces of legislation that are in place, one of them is the Anti-Corruption and Economic Act 3 of 2003.
Section 55 of the Act bestows power upon the Ethics and Anti-Corruption Commission to institute a suit in court to recover unexplained assets.
The Supreme Court decision sets the ball rolling in as far as recovery of unexplained assets is concerned.
This precedent will hasten assets recovery and expedite the process of nabbing corrupt individuals.
As a matter of practice, in a criminal proceeding, the burden of proof is upon the prosecutor.
However, to prove that an individual’s wealth is disproportionate to their income is a herculean task, therefore this decision means that if a public officer owns assets that are not proportionate to his known source of income it simply means they were acquired through corrupt means and the onus will be on the accused person to prove that he or she acquired it legally.
The criminal process is usually, long, cumbersome, and expensive. However, basing on this decision these proceedings on asset recovery are going to be of civil nature and it is a Supreme Court decision it will be binding on the lower courts, the Supreme Court also ruled that an appeal on such proceedings are terminated at the Court of Appeal not unless constitutional issues are raised.
This will cut the chase and ensure faster asset recovery which is constitutional and cost-effective. This decision piles pressure upon the National Assembly to fast track the Lifestyle Audit Bill, 2019. The Bill sets out the framework for the recovery of corruptly acquired assets.
This will herald an effective means of combating corruption in a manner that the burden of proof will be lower as compared to the strenuous manner at which criminal matters are conducted.
Be that as it may, the legal question that lingers around this area is, in the event, one cannot prove that his or her assets were legally acquired, is it an indication of guilt and an avenue for criminal prosecution? Will this form a basis for the ODPP to build its case?
This is a new area and we look forward to the development of a rich jurisprudence around it.
This decision sets the stage in the enforcement of Chapter 6 of the Constitution of Kenya on leadership and integrity. Initially, courts have been reluctant to enforce the provisions of this specific Chapter citing the common law doctrine of innocent until proven guilty.
This avenue has been used by the political elites to circumvent the provisions of the law. In the event, the EACC successfully recovers unexplained assets from an individual that will amount to an indictment on his or her integrity.
This automatically should bar an individual from holding a public office as per the provisions of Chapter six of the Constitution.
Geoffrey Koech, National Taxpayers Association, Nyanza Regional Officer.