•Withdrawal followed reservations by the Assets Recovery Agency on expanding EACC's role in asset recovery.
•Proposed anti-graft laws to be subjected of consultations between concerned agencies.
Image: FILE
The government has withdrawn from Parliament its proposed radical anti-corruption laws, exposing turf wars rocking agencies fighting graft.
The bills had been considered a major boost to the corruption war and if enacted would have made it mandatory for all state officers, including the Deputy President, to step aside if charged.
However, it has emerged that inter-agency squabbling triggered the withdrawal following spirited protests by the Asset Recovery Agency.
ARA had argued the proposed amendments would allow other anti-graft agencies to encroach on its mandate.
On Wednesday, National Assembly Speaker Justin Muturi announced he had accepted a request by Leader of Majority Amos Kimunya to drop the amendments.
Muturi, in his message to MPs on Wednesday, said it was necessary to isolate the contentious statutes “to allow further inter-agency consultations
“…while allowing the rest of the Bill to proceed without delay. The Bill will now undergo public participation, and other stages without making reference to the withdrawn statutes.
“The Statute Laws (Amendment) Bill, 2020, will proceed as though the withdrawn statutes were not part of the Bill as published,” he said.
The inter-agency fight could further hurt President Uhuru Kenyatta's war on corruption.
The Directorate of Criminal Investigations boss George Kinoti and the Directorate of Public Prosecutions head Noordin Haji are separately embroiled in turf wars over anti-graft investigations.
The Bill sought, among other measures, to amend the Proceeds of Crime and Anti-Money Laundering Act to (POCAMLA) include EACC officers among those authorised to seize assets.
The legislative proposals would also require that the DPP and the EACC Chief Executive Officer be part of the Anti-Money Laundering Advisory Board.
But according to the ARA, the provision would see the EACC take up its key mandate in the fight against corruption.
The EACC, in the now expunged proposal, was to get powers to institute asset recovery proceedings and also monitor bank accounts operated by state officers held outside Kenya.
The ARA maintains the EACC should focus on investigating bribery and corruption and leave the asset tracing and recovery to them.
On Thursday, the EACC declined to comment on the turf wars with ARA. A high-ranking official told the Star, “There is no word."
The Star has established ARA boss Muthoni Kimani had quietly written to Attorney General Kihara Kariuki asking for withdrawal of the amendments for further consultations.
On Thursday, Muthoni told the Star her opinion to the Attorney General must not be treated as an indication of any turf wars between the two key agencies.
“We were yet to consult as the concerned agencies in the graft war. Our call was for more room for extensive consultations on this important tool in the fight against corruption,” Muthoni said.
xxIn her legal opinion to the AG, Muthoni argued that ARA is the one mandated to “identify, trace, freeze and recover proceeds of crime” and not the EACC.
She said the amendments to POCAMLA to introduce EACC officers as authorised to seize assets can be challenged in court.
In what lifted the lid on the silent wars innvolving the agencies fighting graft, ARA argues the EACC should keep off the anti-money laundering law.
“The EACC should, if it identifies any gaps, propose amendments to any other law outside their mandate, and not to POCAMLA,” the ARA boss said.
But in what may expose the inter-agency dispute, a source in Parliament intimated that the amendments were sneaked in without the AG’s involvement.
"The EACC brought the amendments directly. It of course doesn’t have to refer to the AG for anything regarding change of law. They can come to Parliament directly," the officer said.
"They (the EACC) can bring amendments directly being that they are an independent office, but state offices are interdependent. We agree there was supposed to be some level of consultation.
"The request for the amendments to be dropped was brought by the AG but the bigger picture is that ARA is trying to fight for their space," the officer added.
In her argument, Muthoni says the ARA should be the agency solely charged with the mandate of recovering assets and other proceeds of crime.
The ARA objections were based on proposed changes that also sought to bring the Ethics and Anti-Corruption Commission on board in the asset recovery efforts.
The withdrawn amendments sought to tighten anti-graft laws with President Uhuru Kenyatta seeking to make the war part of his legacy.
The Bill, for instance, sought to make it mandatory for all appointed state officers to step aside for 90 days even before they are charged with corruption.
The Bill also piled pressure on the Judiciary to conclude cases within two years.
In the withdrawn law, the government also petitioned Parliament to expunge Section 62(6) of the Anti-Corruption and Economic Crimes Act, 2003.
This provision, protects elected leaders and independent office holders from being forced out of office when under prosecution for graft.
By its deletion, the only office bearer who was exempted from prosecution is the President – owing to immunity given by virtue of his tenure.
Justice Mumbi Ngugi, in an obita dicta opinion (not necessarily part of a ruling), said the provision is one that violates the letter and spirit of the Constitution.
“It is contrary to the constitutional requirements of integrity in governance, are against the national values and principles of governance and principles of leadership and integrity in Chapter Six,” Ngugi said.
Asset recovery has become a lethal tool in President Uhuru Kenyatta’s rejuvenated efforts to wipe out corruption in the country.
EACC has been seizing assets of graft suspects, the latest in the works being those of Sirisia MP John Waluke.
The MP risks losing his assets if he doesn’t raise a more than Sh720 million fine for defrauding the NCPB over Sh330 million in purported maize supplies.
The EACC says it has netted Sh17 billion of once corruptly acquired assets and is pursing others worth Sh8.7 billion in 357 cases pending in court.
Properties and bank accounts of big names in the country’s political and business scenes have been a target by the anti-graft agencies.
Suspects’ cars, houses and land are seized while others are served with restriction orders on dozens of properties.
Anti-graft agencies have been clearer that properties connected with corruption networks or obtained through corruption of proceeds of graft will be given back to the State.
The Criminal Procedure Code was to be changed to allow any public prosecutor to initiate a case before a magistrate.
The change to the Evidence Act was to allow admissibility of digital photographs in courts, which has been a contentious issue in many cases.
Also proposed were changes to the Leadership and Integrity Act to provide for EACC’s prior review of self-declaration.
This was in a bid to make it difficult for persons with integrity questions to assume state offices.
“The High Court may declare the assumption of office by a state officer to be invalid for want of signing of the officers’ specific Leadership and Integrity Code,” the proposal read.
The Counter Trafficking in Persons Act, 2012 was also to be amended to include the DPP in Counter-Trafficking in Persons Advisory Committee.
The government also sought to change the Bribery Act, 2016 to allow any person to report bribery.
Together with the amendments bordering on admissibility of photographs as evidence in court, it was promoted as one that would be a game changer in efforts to stamp out bribery.
(Edited by V. Graham)