NAIROBI, Kenya October 9 – The Supreme Court has overturned an earlier Court of Appeal decision which required the Ethics and Anti-Corruption Commission (EACC) to notify corruption suspects before commencing investigations .
The Supreme Court ruled that the EACC was not obliged to inform suspects before launching an investigation.
“Requiring the EACC to notify suspects before certain investigative actions would render the EACC ineffective in its work. Notably, such notices would eliminate, among other effects, the essential element of ‘surprise’ in criminal investigations,” the court said.
And he stressed that failing to inform a suspect before an investigation will in no way violate his constitutional right.
The court further ruled that prior notification will depend heavily on the circumstances in which the situation finds itself and the nature of the evidence required by the court to support one or more charges.
“It all depends on what is at stake, the nature of the evidence required and the urgency with which said evidence must be acquired. In these circumstances, it cannot be said that the Commission must always give notice to those it intends to investigate before commencing an investigation,” the judges ruled.
The Constitution provides that if a fundamental right or freedom of a person has been or is likely to be adversely affected by an administrative action, the person has the right to be informed in writing of the reasons for such action.
It was on this basis that the five-judge bench argued that making an arrest or house search does not impair an individual’s rights of administrative action as stipulated in the constitution, provided that the written reasons are published.
“Strictly speaking, these powers, when exercised, do not qualify as an ‘administrative act’ within the meaning of Article 47. be considered an administrative act? the bench of the Supreme Court posed.
The said decision dates back to 2015, when the Chief Magistrate of the Kibra Courthouse ordered the EACC to open an investigation into the alleged Ksh. 280 million paid to Ojienda’s solicitor-client by Mumias Sugar Company Limited for legal services not rendered.
Ojienda then approached the court for clarification and interpretation on whether a suspect should be investigated before receiving notice of it.