Justice Nixon Sifuna: It's wrong to charge people before probe is over

When Justice Sifuna Nixon Wanyama is sworn in as a High Court Judge. [Wilberforce Okwiri, Standard]

It is illegal for the Ethics and Anti-Corruption Commission to charge suspects before completing investigations, a judge has said.

Justice Nixon Sifuna said the practice of first charging people in court and then commencing or continuing with investigations is an affront to the right to a fair trial.

"It is only after the findings of completed investigations that a person should be charged," ruled Sifuna.

Justice Sifuna further declared that it is illegal for the EACC to seize documents from a suspect and hold them for an indefinite period on the pretext that they are still investigating.

The judge said although EACC enjoys the privilege of executive power to investigate all cases of corruption and economic crimes, no law allows it to abuse the rights of other people.

He added that EACC, like any other public office, must be audited and brought to account when it is involved in activities that are contrary to the constitution and the rule of law.

"Impunity should not allow an investigative agency such as the EACC to carry out a raid or swoop on a person's or entity's premises to close and cart away the person's property or documents and continue to hold the properties for years on claims that they are still investigating," ruled Sifuna.

Justice Sifuna made the ruling in a case filed by the directors of Edermann Properties Limited, Zhang Jing and Zeyun Yang, claiming that EACC had refused to release documents it seized from their home and offices in 2019.

The two were among several individuals charged in 2021 with conspiracy to defraud Lake Basin Development Authority Mall in Kisumu of Sh1.5 billion.

They were charged alongside former Kisumu County Assembly Speaker Onyango Oloo, Bobasi MP Innocent Momanyi, former Lake Basin Development Authority (LBDA) Managing Director Peter Abok and the authority's board of directors.

Jing and Yang said since EACC took away the documents from their home in Runda Estate in 2019, the agency has refused to release them despite not being part of the evidence it is relying on in the anti-corruption case.

Justice Sifuna agreed with their submissions that EACC cannot conduct investigations forever and must release the documents.

"The commission has admitted having seized the documents in 2019 but callously asserted it presumed sweeping and arbitrary powers to continue holding them. This is not just naked arrogance but an exemplification of impunity and heavy-handedness," said Sifuna.

He directed that in case EACC is still conducting investigations concerning the matter, the agency must complete the probe within 100 days and unconditionally return the documents to Jing and Yang.

He also ordered the commission to, within 30 days, do an accurate inventory of all the items, properties and documents it seized from Jing and Yang and ensure none is lost for the four years it has been holding them.