EACC faults Rawal ruling on proceeds of corruption

Deputy Chief Justice Kalpana Rawal has come under a serious judicial attack for taking away the corruption watchdog’s power to recover assets fraudulently acquired by public officials.

The Ethics and Anti-Corruption Commission (EACC) says Justice Rawal erred in striking out two sections of the law that governed the recovery process, leaving the agency in a fix.

Justice Rawal made the decision in her 2011 judgment against the EACC, which had sought to recover Sh140 million from former National Water Conservation and Pipeline Corporation (NWCPC) finance boss Stanley Amuti.

The decision also barred the EACC from confiscating Mr Amuti’s assets, forcing the corruption watchdog to move to the Court of Appeal.

The EACC is seeking a reversal of Justice Rawal’s decision to strike out Sections 55 (5) and (6) of the Anti-Corruption and Economic Crimes Act of 2011 while she served as a High Court judge.

The two sections allowed the anti-graft agency to confiscate any assets that public officers are proven to have acquired through corrupt dealings for onward remission to the State.

The EACC on Monday told the Appellate Court that the deputy CJ’s judgment has stalled its ability to reclaim stolen public funds from corrupt public officials.

“The judge erred in fact and law in holding that Section 55 of the Act had gaps yet the said section sets out an elaborate legal mechanism and procedural safeguards for forfeiture of unexplained assets.

“She also erred in failing to find that Mr Amuti had assets that were far higher than his known legitimate sources of income and that he had failed to give an adequate explanation for the disproportion,” EACC said.

Too much burden

Justice Rawal struck out the two provisions, arguing that they put too much burden on accused individuals to explain the source of their assets in the event they are accused of graft.

She further held that the sections did not properly define what constitutes a satisfactory explanation.

The watchdog, however, said Justice Rawal weighed the provision against the 2010 Constitution, while the investigations and filing of the suit were done long before the new laws were promulgated.

Her decision to strike out sections of the law, it added, was against the principles of fighting corruption. Mr Amuti has, however, thrown his weight behind Justice Rawal arguing that the laws were too vague as to what constitutes “satisfying the court that he had acquired his assets legitimately”.

The accountant further says the laws as framed give an edge to EACC over accused persons as they have to prove their innocence to the court using a standard that is not set. This, he said, is a violation of the right to a fair hearing as provided for by the Constitution.

The EACC filed the suit against Mr Amuti in 2008, seeking to condemn him to pay Sh140 million to the government or seize his assets to recover the amount it claims he acquired fraudulently from NWCPC. The officer was said to have deposited the sum in his six bank accounts between September 2007 and June 2008.

A search on his home unearthed Sh4.3 million in cash alongside ownership documents for several properties, including land and four cars.

The list of suspect assets includes bank accounts held with Barclays Bank (two), Standard Chartered (three) and National Westminster Bank in London, five apartments in Umoja Innercore and three parcels of land in Ngong.

Mr Amuti has, however, disputed the amount that transited his accounts during the period the EACC says he embezzled public funds. The former NWCPC finance boss says he only deposited Sh39 million during that period.

His lawyer, Kioko Kilukumi, told the judges that EACC deliberately trumped up the amount in a bid to hoodwink the court into allowing it to confiscate the property.

He added that Mr Amuti has since 1999 owned the land in Ngong, and the EACC cannot claim it was acquired in 2007.

“My client is an accountant by profession and had worked in public service for 25 years by December 2008 when he was terminated while earning a gross monthly salary of Sh306,000. You’re being told he deposited Sh140 million, but that is a contested issue. That information was a deliberate misrepresentation by EACC, as the amount he deposited was Sh39 million. The property the EACC sought to be forfeited are all his earthly possessions,” Mr Kilukumi said.

The anti-graft agency also put Mr Amuti on notice that he may be charged once enough evidence is gathered against him.

The EACC has also asked Justices Martha Koome, Festus Azangalala and Hannah Okwengu to revive the suit it filed against Mr Amuti and compel the High Court to determine it afresh.