• Ruling prompted by EACC warrant to inspect bank accounts of Tom Ojienda
• EACC must now ask suspects for information before requesting a court order
On Wednesday a three-judge Court of Appeal ruled that the Ethics and Anti-Corruption Commission must first advise suspects before seeking court orders to conduct searches or inspect bank accounts.
The court decided that a court order could only be provided if the suspect refused to voluntarily provide the information.
The ruling was precipitated by the EACC getting a warrant from Kibera magistrates court in 2015 to the EACC to access the accounts of lawyer Tom Ojienda concerning his receipt of Sh280 million from Mumias Sugar Company.
This ruling is fraught with danger. In essence, it declares that investigative agencies must notify suspects that they are under investigation.
This precedent specifically refers to the EACC but, if upheld, it could be extended to the police and security agencies.
No doubt the police, EACC and security agencies will continue to investigate crimes and wrongdoing. But the problem will arise when cases are brought to court. Lawyers for the defendants will argue that evidence was illegally collected as their clients were not given the chance to provide the information themselves.
Yet suspects will be tipped off if the EACC or police ask them for details of their bank accounts and transactions.
The EACC must go to the Supreme Court to appeal this ruling. Otherwise, it will cripple all investigative bodies in Kenya forever more.
Quote of the day: "The world is my church. To do good my religion."
The first Botswana President died on 13 July, 1980