Chairperson of Justice, Legal and Constitutional Affairs Committee of the Senate Sen. Cherargei Kiprotich has called for the amendment of criminal procedure laws to remove bottlenecks that impede the fight against corruption.
Senator Cherargei said a review of existing legal and policy framework reveals legislative gaps that hinder the effective and efficient fight against corruption.
“The existing anti-corruption legal framework does not sufficiently address the rampant corruption in the country, and there is need to implement legislative changes,” he said.
He said there is need to reform the penal and criminal procedure laws to enhance intelligence gathering and investigations, as well as prosecutions, asset tracing, freezing and recovery of proceeds of crime.
Cherargei was speaking after charing a meeting between JLAC and Multi-Agency team for the fight against corruption. He said a number of legal, procedural and institutional challenges in the fight against economic crimes have been identified: “The challenges arise from lack of clear legislative provisions governing certain aspects of investigations and prosecutions.”
The Nandi Senator said the challenges include conservatory court orders that hamper investigation and prosecution of suspects.
“Corruption suspects obtain conservatory orders from the courts through constitutional and judicial review applications whose effect is to derail or prohibit investigations and prosecutions,” he said.
He said although there are some situations where such orders are merited, in most cases, the suspects misuse the court process to the detriment of law enforcement.
“The emerging jurisprudence where the courts seem to curtail the constitutional and statutory mandate of law enforcement and prosecution agencies is a dangerous precedent,” Cherargei observed.
The Senator also identified the lack of clear legislative framework for “stepping aside” by public officers when under investigation or prosecution as a major challenge.
Currently, persons charged on corruption allegations still occupy public office, despite the inherent and what should be obvious risk of compromising the case investigations, evidence and prosecution, a phenomenon that appears more predominantly particularly in high level corruption cases.
“In the war against graft, it is always important to safeguard the integrity of the investigation and prosecution of cases. Suspects of economic crimes ought not to be afforded an opportunity to interfere with the investigations and prosecutions of these crimes. In effect, they should step aside or be suspended to ensure there is limited access to their places of work and witnesses,” Cherargei opined.
Cherargei also alluded to the lack of clarity in the implementation of procurement laws as another hindrance in the fight against graft.
Procurement related corruption accounts for a huge percentage of all corruption in the country and significantly contributes to accumulation of unexplained assets by corrupt persons.
According to Cherargei, in order to effectively implement the anti-corruption measures targeting the procurement sector, the public procurement regulations to operationalize the Public Procurement and Asset Disposal Act, 2015, should be fast-tracked. Additionally, the Public Procurement Regulatory Authority should operationalize and implement debarment procedures under section 41 of the Public Procurement and Asset Disposal Act.
Another challenge Cherargei identified is the lack of a clear framework to implement audit reports from the Auditor General. He said there is lack of reporting mechanism on the implementation of Audit recommendations by accounting officers to the Auditor General.
“There is need to establish an effective monitoring and evaluation mechanism to ensure implementation of Audit recommendations to strengthen internal controls and prevent opportunity for corruption,” he noted.
He said delay in consideration of audit reports by parliament and constrained timelines for audit need to be synchronized to ensure effectiveness.
Cherargei also pointed out the provision of bail and bond terms for serious offences. He noted that although the right to bail and bond is constitutional, it should be limited where there are compelling reasons.
The practice now is that courts exercise discretion in determining bail and bond terms.
“While there exist bail and bond policy guidelines, the terms being imposed for serious offences are not commensurate to the gravity of the offence and public interest,” Cherargei noted.
The legislator identified a number of laws he said need to be amended to seal gaps. The laws include the Anti-Corruption and Economic Crimes Act, and Criminal Procedure Code.
He said even as parliament works to ensure agencies responsible for investigating economic crimes are efficient, effective and sufficiently independent and insulated, the agencies should remain professional and ensure credibility.
“We are providing enabling legislation to ensure adequate, strong safeguards in structure, operations, finances, staffing and functions of the independent institutions to strengthen and function effectively,” he said.
“DCI, EACC, DPP, and the Judiciary, should operate independently without instructions from anybody, without serving any partisan interests,” he added.