Why MPs want EACC given full prosecution powers

 

The EACC Head Office in Nairobi. March 25, 2025. [Boniface Okendo, Standard]

Members of Parliament are now making proposals to give the Ethics and Anti-Corruption Commission (EACC) prosecutorial powers, even as they pointed an accusing finger at the Office of the Director of Public Prosecutions (ODPP) for being the biggest impediment in the fight against corruption.

The National Assembly Committee on Justice and Legal presented a proposal to their Budget and Appropriations Committee, chaired by Alego Usonga MP, Samuel Atandi and also stated that they intend to meet with the two entities to understand why serious cases are being withdrawn from courts.

JLAC chairperson, also the Tharaka MP, George Murugara, said there is a need for EACC and ODPP to either find a way of working together or have EACC empowered to ensure they are able to investigate and prosecute the cases they are handling.

According to Murugara, it is unfortunate that the DPP has withdrawn several cases that EACC has investigated and recommended for prosecution.

“We must think of granting prosecutorial powers to the EACC specifically for corruption and economic crimes cases. We are also thinking of how we can bring together the DPP and the EACC to work together,” Murugara told the Budget committee.

Currently, EACC only has the power to investigate cases while prosecution is left to the ODPP. On the other hand, the ODPP is established under Article 157 of the Constitution as the primary body to institute and undertake criminal proceedings against any person before any court, save for court martial, which holds its own internal military prosecutions.

Earlier this month, EACC Chief Executive Officer (CEO) Abdi Mohamud complained to the National Assembly Constitutional Implementation Oversight Committee (CIOC), chaired by Nandi Hills MP Bernard Kitur, that the office of the DPP has unchecked powers and can decide to close or return a file, a situation that has caused challenges in prosecuting cases.

Mohamud told the Committee that delays in prosecution are largely due to institutional limitations, including the Commission’s lack of direct prosecutorial powers and called on Parliament to consider legislative reforms that would grant the EACC authority to prosecute corruption cases directly.

“If EACC were to prosecute cases we have forwarded to the DPP, we would be seeing a very different scenario. Most investigations conducted by the commission are forwarded to the ODPP, where they sometimes stall. The DPP has extensive discretion to open or close cases, which can sometimes limit the Commission’s ability to see investigations through to prosecution,” Mohamud explained.

Reports have also indicated that the constant withdrawal of cases by the DPP has dampened the morale of EACC investigating officers, given the extent to which they go in investigating corruption webs.

“The situation is that the DPP will set a person free, and the EACC, with all the efforts employed in investigating cases, will be up in arms, helpless,” Murugara stated.

The committee made reference to Article 157 (12) of the constitution, which states that parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecutions.

Murugara explained that the proposal seeks to amend the Constitution to give Parliament the ability to confer such powers, when necessary, noting that it is just not about giving the anti-graft commission blanket powers.“It is either the DPP prosecutes these cases properly, or we amend the law to grant EACC the powers. We could have a clause inserted in the constitution which gives parliament the leeway to give prosecutorial powers to EACC to prosecute their cases. It was originally designed that investigators should not prosecute and vice versa to separate the roles and ensure independence. But that seems not to be working,” Murugara explained.

He made the remarks against the backdrop of the MPs questioning the continued funding to EACC, yet the cases being prosecuted are very minimal.

The Justice committee revealed that EACC requires additional funding of Sh8.54 million on account of an insurance claim refund.

Endebess MP, Robert Pukose, claimed that EACC is doing a lot of stage-managed arrests as no prosecutions are being undertaken, citing the recent decision of the High Court, which acquitted Trans Nzoia Governor George Natembeya.

The High Court in Nairobi quashed criminal charges against Natembeya earlier in the month and faulted investigators over what it termed as unconstitutional actions during his arrest and investigations.

The DPP had charged the governor with unlawful acquisition of public property worth about Sh3.25 million, with Justice Bahati Mwamuye finding that EACC acted unlawfully by denying Natembeya access to his lawyers at the time of his arrest in May last year, saying the move violated his constitutional right to legal representation and fair trial guarantees.

“EACC is doing a lot of stage-managed arrests like that case of Natembeya. Is there anything that can be done on EACC? It seems like it is a cash cow,” Pukose stated.

But Atandi sought to understand whether, by giving blanket prosecutorial powers to EACC, this would be abused, as they would prosecute people without giving them an avenue of defending them.

“The current arrangement offers credible checks and balances. How sure can we be that if granted powers to prosecute, the EACC would not abuse them?” posed Atandi.

Ugenya MP David Ochieng also stated: “JLAC has the competence to question the DPP’s actions.”

EACC had previously stated that it had withdrawn 18 high-profile cases, out of which 17 were matters withdrawn from court by the DPP.

The commission said that ODDP only sought consent to withdraw one case, a majority happening between 2023 and 2024, with five and seven cases dropped, respectively. Last year, two cases were withdrawn.