A lobby group has moved to the High Court seeking to block a proposal to grant prosecutorial powers to the Ethics and Anti-Corruption Commission (EACC), arguing that the move is unconstitutional.
Sheria Mtaani, in a petition filed before the High Court, contends that the mandate to institute and undertake criminal proceedings is exclusively vested in the Office of the Director of Public Prosecutions under Article 157 of the Constitution and cannot be transferred through legislation.
Through lawyers Danstan Omari and Shadrack Wambui, the group argues that Kenya’s constitutional architecture deliberately separates investigative and prosecutorial functions to ensure accountability and guard against abuse of power.
They submit that any attempt to confer prosecutorial authority on the Ethics and Anti-Corruption Commission would undermine the independence of the prosecutorial process and reduce the ODPP into what they term a “rubber stamp.”
“The ODPP cannot be reduced to a conveyor belt for approvals. Corruption cases require independent scrutiny before charges are sanctioned,” the lawyers state in court papers.
The petitioners further argue that investigative files forwarded by the EACC often require thorough review, dismissing any expectation that approvals should be issued hastily.
In the suit, the lobby group is also seeking orders compelling the EACC to disclose statistics on the number of files submitted to the ODPP, how many met the evidentiary threshold for prosecution, and how many were returned for further investigations due to insufficient evidence.
They argue that such data will demonstrate systemic gaps in investigations and justify the need to retain the current constitutional separation of roles.
The group cites recent high-profile matters, including the case involving Trans Nzoia Governor George Natembeya, arguing that despite investigations allegedly involving billions of shillings, the charges preferred were limited in scope, raising concerns over the quality and sufficiency of evidence.
According to the petition, the EACC should also account for the number of individuals summoned to record statements versus those ultimately charged in court.
While addressing the Media at Milimani Law Courts, Omari traced the evolution of Kenya’s prosecutorial framework, noting that the 2010 Constitution deliberately removed prosecutorial powers from investigative agencies.
“Kenyans rejected a system where the complainant, investigator and prosecutor are one and the same. That is why Article 157 created an independent ODPP,” he said.
Omari added that any attempt to alter that mandate can only be achieved through a constitutional amendment by way of a referendum.
Wambui argued that the separation between investigators such as the EACC and the Directorate of Criminal Investigations, and prosecutors under the ODPP, serves as a critical safeguard for the public.
“It is a deliberate protection to ensure that no Kenyan is subjected to a process where the investigator becomes the prosecutor,” he said.
He further cited a 2020 High Court decision which affirmed that investigative agencies lack the authority to institute criminal proceedings.
“The court was clear that an investigator cannot commence or undertake prosecution. That mandate rests with the DPP,” Wambui added.
The lobby group further warned that it will challenge any legislative attempts to expand the EACC’s mandate, insisting that constitutional boundaries must be respected.
They maintained that the EACC should remain an investigative body, leaving the decision to charge or not to charge solely to the ODPP.
Sheria Mtaani said it will proceed with the case to ensure the constitutional roles of investigative and prosecutorial agencies remain intact.
Leave a comment