Factors to be considered before the issuance of notices by the Ethics and Anti-Corruption Commission to those it intends to investigate
A complaint had been lodged before the 1st appellant, the Ethics and Anti- Corruption Commission (EACC) alleging Kshs. 280 million had been fictitiously paid into the 1st respondent’s advocate-client bank account. Based on that allegation, the EACC obtained warrants to investigate and inspect the bank account ex-parte. Aggrieved, the 1st respondent filed a constitutional petition contending that the warrants had been issued ex-parte and had been obtained and enforced secretly without notice.
The 1st respondent urged that the EACC’s actions amounted to an infringement of his right to privacy, property, fair administrative action, and fair hearing; and contradicted sections 28(1, (2), (3) and (7) of the Anti-Corruption and Economic Crimes Act (ACECA), which required EACC to issue a notice informing him of its intended application and affording him an opportunity to be heard before a court could legitimately issue any warrants.
The High Court held among others that the warrants to investigate the bank account breached the 1st respondent’s rights and fundamental freedoms under the provisions of articles 47(1), 47(2) and 50(1) of the Constitution of Kenya, 2010 (Constitution) hence void for all intents and purposes. Aggrieved, the appellants lodged appeals at the Court of Appeal while the 1st respondent also filed a cross appeal against part of the judgment. The Court of Appeal upheld the High Court decision and dismissed both the appeals and cross-appeal for lack of merit. The appellants were further aggrieved and thus filed the instant appeal.
- What were the factors to be considered before the issuance of notices by the Ethics and Anti-Corruption Commission to those it intended to investigate.
- Whether the Ethics and Anti-Corruption Commission was required to always give prior notice to those it intended to investigate before commencing an investigation.
- What was the nature of the Ethics and Anti-Corruption Commission’s mandate in combating corruption and economic crimes in the society?
- What was the nature of an administrative action and whether the Ethics and Anti-Corruption Commission’s investigative powers could be described as administrative actions?
- What were the factors to consider in invoking the Supreme Court’s appellate jurisdiction as a matter involving the interpretation or application of the Constitution?
Relevant provisions of the law
Constitution of Kenya, 2010
Article 47 - Fair administrative action
(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall–
(a)provide for the review of administrative action by a court or, if appropriate, and independent and impartial tribunal; and
(b)promote efficient administration.
- For a litigant to invoke the court’s appellate jurisdiction under article 163(4)(a) of the Constitution, it had to be demonstrated that the matter in issue revolved around constitutional contestation that had come through the judicial hierarchy, running up to the Court of Appeal and requiring the court’s final input. At the very least, an appellant had to demonstrate that the court’s reasoning and conclusions which led to the determination of the issue, put in context, could properly be said to have taken a trajectory of constitutional interpretation or application.
- The issues before the High Court and Court of Appeal, leading to the impugned judgments squarely brought the instant appeal within the ambit of article 163(4)(a) of the Constitution. Besides, the 1st respondent having filed a constitutional petition and succeeded before the two superior courts could not claim that the resultant appeal therefrom was not sustainable under article 163(4)(a). The court had the jurisdiction to hear and determine the instant matter.
- The argument that the impugned warrants which triggered the appeals were sought, issued and enforced in 2015 and as such there was no justiciable issue between the parties was far-fetched given the fact that the enforcement of the impugned warrants did not resolve the grievances. Indeed, it was the issuance of those warrants that prompted the 1st respondent to move to the High Court seeking to have them quashed.
- Articles 47 and 260 of the Constitution did not define an administrative action. Section 2 of the Fair Administrative Action Act (FAA Act) which was enacted to give effect to article 47, defined ‘administrative action’ as including the powers, functions and duties exercised by authorities or quasi-judicial tribunals or any act, omission or decision of any person, body or authority that affected the legal rights or interests of any person to whom such action related.
- The definition of an administrative action under section 2 of the FAA Act did not provide an accurate picture of the meaning of an administrative action. It simply addressed the elemental aspects of the phenomenon before describing its nature. On the face of it therefore, any power, function, and duty exercised by authorities or quasi-judicial tribunals constituted an administrative action. Likewise, any act, omission or decision of any person that affected the legal rights or interests of any person to whom such action related constituted an administrative action. Such definition, without more, would bring within the ambit of an administrative action just about anything done or any exercise of power by an authority or quasi-judicial tribunal.
- A close scrutiny of article 47 of the Constitution gave a glimpse of what an administrative action entailed. Towards that end article 47 provided that Parliament was to enact legislation to give effect to the rights in clause (1) and that legislation should promote efficient administration. By stipulating that the legislation so contemplated had to among other things, promote efficient administration, the Constitution left no doubt that an administrative action was not just any action or omission, or any exercise of power or authority, but one that related to the management of affairs of an institution, organization, or agency. That explained why such action was described as “administrative” as opposed to any other action.
- Part IV of the ACECA specifically provided for the EACC’s investigative powers. The powers granted therein included powers, privileges and immunities of a police officer under section 23(3), to search premises under section 29, to apply for surrender of travel documents under section 31, to arrest persons under section 32 amongst others. Strictly speaking, those powers when exercised could not be described as administrative actions within the meaning of article 47 of the Constitution.
- Article 20(1) of the Constitution provided that the Bill of Rights applied to all and bound all State organs and all persons. It entrenched the enjoyment of rights and fundamental freedoms in the Bill of Rights by every person and to the greatest extent consistent with the nature of the right or fundamental freedom. The right to fair administrative action, that was expeditious, efficient, lawful, reasonable and procedurally fair was one such right under the Bill of Rights.
- There was no basis for holding that the 1st respondent’s rights were violated for failure to observe the requirements of article 47 of the Constitution. Therefore, in the absence of proof of violation of his other fundamental rights and freedoms guaranteed by the Constitution, the impugned warrants ought not to have been quashed on the basis of that claim.
- Under section 26 of the ACECA, the EACC was required to issue a notice in writing where the Secretary to the EACC (the Secretary) was satisfied that it could assist or expedite an investigation. The language in section 26 was permissive rather than mandatory. It all depended on whether the Secretary was satisfied that the furnishing of information regarding specified property could assist or expedite an investigation. That explained why the person reasonably suspected of corruption was the one required through a notice in writing to furnish the requisite information relating to the property or properties specified in the notice.
- If the Secretary was not satisfied that such notice would assist or expedite an investigation, then he/she did not have to issue it. The Secretary could very well be of the opinion that such notice, instead of assisting or expediting an investigation, could actually jeopardize or delay it. Such notice, if necessary, would be issued during an ongoing and not prior to an investigation. Before the conclusion that certain information was required, preliminary investigative processes had to have been undertaken.
- Under section 27 of the ACECA, the EACC had two options, either, it could move directly and obtain an ex-parte order from court against an associate of a person suspected of corruption, requiring such associate to produce certain documents or information, or it could with notice in writing require the associate to produce the specified information. Where the EACC opted for the court process, no notice was required to be issued to the associate. Only where it chose to get the information directly from the associate was the EACC required to issue the notice in writing. The language of the statute was permissive rather than mandatory.
- Under section 28 of the ACECA, the EACC could with notice in writing to the affected parties seek a court order requiring the production of specified records in the possession of any person whether or not suspected of corruption. The notice could be issued to any person, and not just one suspected of corruption. It could be reasonably assumed that in such a situation, the notice was to be issued before the commencement of an investigation. The section stated that such specified records could be required for an investigation, hence what was envisaged was a process of investigation that was yet to commence. That explained the fact that the notice was not confined to persons suspected of corruption but extended to any others that the EACC believed were in possession of such records.
- Under section 28 of the ACECA, the EACC could issue notice directly to a person suspected of corruption or economic crimes, requiring him to produce specified property as opposed to specified records. The property was so required for inspection. In the instant case, it could be reasonably assumed that such notice could be issued by the EACC during an on-going investigation. Section 28 was however silent as to whether in that regard, the issuance of notice by the EACC was also dependent on the opinion of the Secretary.
- Section 23(4) of the ACECA conferred upon the Secretary and investigators under the Act, powers, privileges and immunities of a police officer in so far as the same were not inconsistent with the provisions of the Act or any other law. Therefore, the Secretary and investigators were given police powers, which they could exercise in the course of their duties under the relevant provisions of other applicable laws. Such laws included the Police Act, the Criminal Procedure Code (CPC), the Evidence Act, among others. The EACC was not limited to the provisions of the ACECA, in carrying out its investigative mandate. Where the provisions of the ACECA were clear and unambiguous, the EACC’s first resort had to be to that enabling statute.
- The EACC had a wide and critical mandate under the Constitution and the law to combat corruption and economic crime in the society. In executing that mandate, the EACC assumed different postures depending on the nature of the specific function it was carrying out. Thus, the EACC could assume a non-confrontational and largely facilitative role when for example, it was educating the public on the nature and vices of corruption, or conducting research into the nature of corruption, or when undertaking a systems’ review of a specific agency with a view to sealing corruption loopholes.
- The EACC could assume a law enforcement posture, when conducting investigations into suspected corrupt conduct, effecting arrests of corruption suspects, disrupting corruption networks and through the Office of the Director of Public Prosecutions, arraigning suspects before courts of law. The EACC could assume an intelligence gathering posture, when for example it was tracing the proceeds of crime (asset tracing) with a view to recovering the same.
- The EACC would apply different sets of laws and strategies. Regarding investigations, it all depended on what was at stake, the nature of the evidence required and the urgency with which the evidence had to be acquired. In the circumstances, it could not be said that the EACC had to always give prior notice to those it intended to investigate before commencing an investigation.
- Sections 26, 27 and 28 of the ACECA set out very specific circumstances in which the EACC could issue notice. If the conditions so specified obtained, then the EACC could issue notice in writing to the affected parties. If the EACC was carrying out a police operation or an intelligence gathering or asset tracing exercise, it could not be required to issue a prior mandatory notice to the intended targets. In such a situation, the provisions of section 23 of the ACECA, the Evidence Act, the CPC, and any other enabling legislation came into play. At all times, whatever the nature of the investigations the EACC could be undertaking, it had to do so within the confines of the Constitution and the law.
- The court could not state with certainty that the EACC ought to have moved to court under section 26 of the ACECA because there was no information on record showing that the Secretary had formed an opinion that the information sought was to aid or expedite the on-going investigation. Neither could the court state that the 1st appellant ought to have moved to court under section 27 of the ACECA since it was not investigating the 1st respondent as an associate of a person suspected of corruption or economic crime. The EACC ought not to have moved to court under section 28 of the ACECA, which was confined to notices requiring the production of records or property as the case could be because in that instance, the investigations had already commenced.
- It was difficult to sustain the declaration by the Court of Appeal to the effect that, the EACC was inflexibly bound to issue notice in the conduct of its investigations. Where the EACC was acting under its police powers, it was bound by the laws pursuant to which the police conducted their investigations and connected purposes. Where it conducted investigations in circumstances where the law required it to issue written notice, then it had to issue the notice. At the end of the day, the people expected that the law enforcement agencies established under the Constitution and the law were effective enough to protect them from crime and related dangers. By the same token, the people expected that such agencies would carry out their mandates in accordance with the Constitution and the law.