CHANGE OF STRATEGY

Self-confessed thieves to get amnesty in new anti-graft law

Law change follows delays in prosecution of corruption cases through ordinary court processes

In Summary

•Graft suspects to enter into deferred prosecution agreements discharging them from active prosecutions.

•DPP empowered to issue orders for the seizure of crime proceeds, payment of financial penalty by suspects.

Director of Public Prosecutions Noordin Haji during an interview at his office, Upperhill, Nairobi on August 26, 2021
Director of Public Prosecutions Noordin Haji during an interview at his office, Upperhill, Nairobi on August 26, 2021
Image: ANDREW KASUKU

The government will provide amnesty to persons who admit culpability in corruption cases in fresh efforts to net proceeds of crime without going through lengthy court proceedings.

The law is being changed to provide the framework for amnesty for corruption cases by offering suspects a chance to enter into agreements with the Director of Public Prosecutions instead of being tried 

The Anti-Corruption and Economic Crimes (Amendment) Bill, 2021, seeks to provide that a person suspected to have committed a corrupt or economic offence agree.

Once an agreement is reached with the DPP, a suspect would be deemed to have been granted a discharge – but not amounting to an acquittal.

“While the deferred prosecution agreement is in force, the person shall not be prosecuted for the alleged offence or any other offence on the same facts in any criminal proceedings,” the proposed law reads.

However, the DPP may impose on suspects, payment of a financial penalty or order them to compensate victims of the graft act.

The statement of facts contained in a deferred prosecution agreement shall be treated as proof of admission by the person who agreed.

Suspects would also be under obligation to cooperate in investigations relating to the economic crime the DPP is intending to prosecute.

“The DPP may impose the following conditions; cooperation in any investigation relating to any possible offence committed by any officer, employee or agent of that person that arises from the same or substantially the same facts as the alleged offence.”

DPP may also order suspects of economic crimes to compensate for the loss of public funds and payment of interest on lost public funds.

The DPP may also put as a condition for an agreement that suspects surrender all private assets acquired using public funds.

Suspects may also be ordered to donate the money to a charity or any other third party, as well as surrender any profits that are proceeds of crime as well as strengthen internal controls.

“The amount of any penalty agreed to between the DPP and the person shall be broadly comparable to the fine that a court would have imposed following a guilty plea,” the proposed law reads.

The government-backed bill sponsored by Nominated Senator Farhiya Ali, who is also Deputy Chief Whip of the Senate, is due for the first reading.

“The deferred prosecution agreements framework is in response to perceived deficiencies in the existing prosecution framework involving economic crimes,” Senator Farhiya says in the bill's memo of reasons.

She adds it was informed by concerns that economic crimes involve long, expensive and complicated investigations and trials.

Away from Kenyans taking long to know the outcome of graft cases, there are also concerns there is no provision for adequate compensation of victims in the current set-up.

“The deferred prosecution agreements shall be concluded under the supervision of a High Court judge,” the memorandum of objects and reasons reads.

A judge supervising such proceedings, the bill says, must be convinced that the deferred prosecution agreement is in the interests of justice and exuded in fair, reasonable and proportionate terms.

A person who has been charged with, or whom the DPP is considering prosecuting for an alleged offence will be excused from prosecution if they comply with the terms of the agreement.

Should MPs approve the bill, amnesty would also start once the court approves a deferred prosecution agreement.

The DPP upon reviewing a case file may invite a suspect into negotiation once there are reasonable grounds to believe that the person has committed an alleged offence.

This will be before the DPP institutes criminal proceedings against a person who is suspected to have committed corruption or any other economic crime.

Application of the new law, the bill reads, would be backdated for an alleged offence, whether committed before or after the commencement of the Act.

Suspects would also be allowed a chance to agree at any time before the commencement of the trial.

“A deferred prosecution agreement may be entered into in respect of two or more alleged offences,” the bill reads.

The law is also being changed to provide that the Ethics and Anti-Corruption Commission deposit recovered proceeds of crime to the Criminal Asset Recovery Fund.

Presently, netted proceeds of crime are deposited at the Consolidation Fund for use in financing part of the government’s budgetary needs.

Among checks for the DPP before allowing such proceedings would be the prior criminal conduct of the person and the extent to which the person has cooperated with the respective investigative agency.

In the agreement, the DPP would be required to state how suspects would be guaranteed confidentiality of the information they give during negotiations.

 

Edited by Kiilu Damaris