• So in totality, while the ruling against secret warrants appeared to be in favor of upholding the bill of rights on behalf of suspects, its intention and effect was to utterly impede and indeed disable collection of evidence thus directly affecting the outcome of prosecutions.
In February 2020, the Supreme Court suspended a Court of Appeals decision made in 2019 that stopped the EACC, DPP and the DCI from using evidence obtained through secret search warrants, pending the hearing of an appeal by the Director of Public Prosecutions and the Ethics and Anti-Corruption Commission.
The matter of secret warrants and their value in the fight against corruption verses the rights of suspects has been an ongoing war playing out in Kenya’s courts, highlighted by the case against lawyer Tom Ojienda dating back to March 2015, when the EACC filed notice of Motion no 168 of 2015.
The application which sought, ‘inter alia, a warrant to be issued for purposes of investigating and inspecting Ojienda’s bank records, alleged that Kshs 280,000,000.00 was paid into Ojienda’s account advocate-client account by Mumias Sugar Company Ltd for legal services he allegedly had not rendered’. (see: http://kenyalaw.org/caselaw/cases/view/177071/)
Mr. Ojienda appealed against the warrant, citing a violation of his fundamental rights and in July 2019 In a decision seen to uphold the Bill of Rights, a three-judge bench of Roselyne Nambuye, Patrick Kiage and Sankale Ole Kantai held that the Ethics and Anti-Corruption Commission has no right to deny persons of interest the right of notice before investigations are carried into their bank accounts. (see: https://www.the-star.co.ke/news/2019-07-12-corruption-suspects-have-right-to-notice-of-action-court/ )
Let’s pause at this stage and contemplate the gravity of such a decision. Considering that suspects of graft try to squirrel away embezzled funds into their private accounts at alarming rates with the intention to later hide these funds in secret accounts likely overseas in tax havens, a notice of an investigation would no doubt trigger flight of capital and a rapid coverup of transactions, thus making it impossible for the agencies tasked with investigating, prosecuting and securing convictions to carry out their mandate.
So in totality, while the ruling against secret warrants appeared to be in favor of upholding the bill of rights on behalf of suspects, its intention and effect was to utterly impede and indeed disable collection of evidence thus directly affecting the outcome of prosecutions.
To put it in layman’s terms, the decision rendered the rights of suspects to be notified over and above the obligations of the state and law enforcement to investigate criminal activities, a ruling that could have consequences not only in the fight against corruption but in other crimes as well.
The decision by the Court of Appeal judges ultimately jeopardized not just the investigations against Mr. Ojienda, but a further 1000 cases, a matter raised by the EACC in an appeal. “The verdict at the Supreme Court ruling undermines 1036 graft cases that have been pending in courts awaiting DPP’s prosecution,” read a statement appealing the ruling.
Indeed, DPP Noordin Haji himself appealed to Chief Justice David Maraga over the ruling, stating that such orders were meant to cripple his office and the Directorate of Criminal Investigations (DCI), adding that they also jeopardised witnesses and evidence.
"The net effect of these orders is crippling the DPP and the DCI in discharging their respective constitutional mandates and jeopardising the status of witnesses and evidence in criminal cases," he said.
"Such a deleterious trend that is likely to erode public confidence in the criminal justice system, due process and a major setback in the fight against corruption has been noted and is worrisome."
Justice Mumbi Ngugi appeared to have agreed with this sentiment, and in a landmark declaration, ruled that investigators have a right to conduct secret searches in the homes and offices of graft suspects without prior notification.
"In my view, the appellate decision was limited to provisions of Anti-corruption and Economic Crimes Act (ACECA) and cannot extend to provisions of the Criminal Procedure Code (CPC). To hold otherwise would deal a death blow to the investigation of any offense, not just economic crimes," she was quoted.
At the Supreme Court this February, Justices David Maraga, Mohamed Ibrahim, Jacton Ojwang’, Smokin Wanjala and Njoki Ndung’u said the suspension of the Appellate decision shall be in place pending the hearing and determination of an appeal by the Director of Public Prosecutions and the Ethics and Anti-Corruption Commission.
It’s noteworthy that Supreme Court Justice Sankale Ole Kantai who was in the panel of judges who collectively made the questionable Appellate decision, was later himself was arrested and charged in relation to the murder of billionaire Tob Cohen.
There is a maxim in law that states when it comes to the laws we create and uphold, we must imagine those laws in the hands of our enemies. The question we must ask is, did Sankale use his position to knowingly deliver a ruling that would later favor himself, or was the intention for all members of the public to benefit?
And this is the current situation concerning conflict of interest when it comes to cases in Kenya’s courts. It's completely shocking that a Supreme Court Judge makes a decision that is so far reaching that even his own imminent prosecution could be affected.
It’s a problem so pervasive that complaints by investigating authorities and victims of perpetrators go unheeded, and yet recently evidence tabled during the trials of the Akasha brothers in New York, indicated that several members of Kenya’s judiciary, political class including legislators, lawyers and even investigating officers were caught up in covering up and defeating any efforts to gain convictions locally.
How chilling a thought, that a sitting member of the highest court in Kenya can not only deliver rulings to subvert the course of justice but also be a suspected co-conspirator in a capital offense. Even more chilling is the exponential effect of that one ruling, should it be upheld finally.
Under no circumstances can such malfeasance be allowed to continue in our halls of justice, and certainly not at the Supreme Court. For the sake of the country, the appeal by DPP and the EACC requires favor, setting right what truly seems a corrupt ruling. No doubt the bill of rights must be respected, but Kenyans are willing to accept a shift in the delicate balance between the accused’s rights and the critical urgency of the fight against corruption.