Analysis of Supreme Court 30 of 2019

Background

A complaint was lodged with the Ethics and Anti-Corruption Commission (EACC) alleging a fictitious payment of Kshs. 280 Million into the Prof. Tom Ojienda, Sc T/A Prof. Tom Ojienda & Associates Advocates’ (Prof. Ojienda) advocate-client bank account by Mumias Sugar Company Limited.

 

CMC Misc. Criminal Application No. 168 of 2015

Based on this allegation, EACC filed ex-parte CMC Misc. Criminal Application No. 168 of 2015 seeking warrants to investigate and inspect the said bank account. On 18^th March, 2015 the Chief Magistrate’s Court allowed the ex-parte application.

High Court Constitutional Petition No. 122 of 2015.

Aggrieved by the order of the Magistrate court, Prof. Ojienda filed this Petition.

 

Prof.Ojienda’s case

He argued that the warrants issued ex-parte and obtained and enforced secretly without notice, infringed on his right to privacy, property, fair administrative action, and fair hearing as enshrined in Articles 31, 40, 47 and 50 of the Constitution.

Secondly that EACC’s actions contradicted Sections 28(1), 28(2), 28(3) and 28(7) of the Anti-Corruption and Economic Crimes Act (ACECA), which require EACC to issue a Notice to a person informing him of its intended application and affording him an opportunity to be heard before a court can legitimately issue any warrants.

Thirdly, payment of legal fees was privileged communication under Sections 13(1), 134 and 137 of the Evidence Act, which a public body cannot ignore unless a client has voluntarily waived that privileged.

 

EACC’s Case

They argued that they did not act outside of their lawful mandate as the warrants were obtained pursuant to the provisions of the Anti-Corruption and Economic Crimes Act. No. 3 Of 2003 (ACECA), sections 118 of the Criminal Procedure Code (CPC) and 180 of the Evidence Act. Their action did not violate any of Proff. Ojienda’s constitutional rights.

 

Issues for determination by The High Court

• Whether warrants to investigate Prof. Ojienda’s Bank Account were issued in violation of his fundamental rights and freedoms protected under Art. 27, 40, 47 and 50 of the Constitution;
• Whether the advocate/client privilege was applicable and consequently whether the prayers sought could be granted; and
• Whether there was another forum for determining the issue in dispute.

 

High Court’s judgement

The High delivered a judgement granting the following orders among others:

• It declared the warrants to investigate an account granted on the 18.03.2015 in Kibera Chief Magistrate Miscellaneous Criminal Case No.168 of 2015, breached the Prof.Ojienda’s rights and fundamental freedoms under the provisions of Articles 47(1), 47(2) and 50(1) of the Constitution of Kenya and were as a result void.
• an order of Certiorari to remove into the Court and quash warrants to investigate an account granted on the 18.03.2015 by the Chief Magistrate court.

 

Appeal to the Court of Appeal

Aggrieved by this Judgment, EACC filed Civil Appeals Nos. 103 and 109 of 2016, which were consolidated.

The consolidated appeal was premised on the grounds summarized as follows, that the learned Judges erred in:

• Failing to uphold that warrants to investigate the 1st respondent’s bank account was lawfully obtained under the provision of Section 180 of the Evidence Act;
• Failing to uphold that the Chief Magistrate’s Court had jurisdiction to issue warrants under Section 118 of the Criminal Procedure Code;
• Failing to appreciate that the provisions of Section 23 of ACECA, Section 180(1) of the Evidence Act and Section 118 of the Criminal Procedure Code were available to EACC in the discharge of its mandate;
• Holding that the 1st respondent’s right to due notice prior to an application for warrants violated Section 28 of ACECA and Article 47 of the Constitution;
• Failing to uphold that the 1st respondent’s rights were limited by Article 24 of the Constitution in favour of the protection of public interest;
• Failing to appreciate that the investigative process by EACC was not administrative but a constitutional process; and
• Failing to appreciate that issuance of prior notice grants a suspect an opportunity to conceal evidence otherwise necessary in the prosecution of crimes. SC Petition No. 30 of 2019 (As Consolidated with) Petition No. 31 of 2019 Page 6 of 35.

 

The cross appeal

Prof. Ojienda also filed a cross appeal against part of the Judgment on the following basis:

• Failing to hold that the 1st respondent’s fundamental right to privacy, to property and against discrimination were violated;
• Holding that EACC had a factual basis which necessitated the issuance of impugned search warrants;
• Failing to hold that the bank account was confidential communication covered by client-advocate privilege;
• Failing to award him damages based on the violation of his right to fair administrative action; and
• For failing to find that EACC lacks constitutional mandate to investigate any alleged criminal conduct, which is the exclusive role of the National Police Service.

 

Issues for determination

The Court of appeal narrowed down the issues for determination to the following:

• Whether the Prof. Ojienda’s fundamental rights under Article 27, 31, 40 and 50 of the Constitution had been violated;
• Whether his bank accounts amounted to confidential information protected by advocate-client privilege;
• Whether actions by EACC were administrative hence under the ambit of Article 47 of the Constitution; and
• Whether EACC was required to issue prior notice to the Prof.Ojienda.

Judgment

The court upheld the decision of the high court entirely and dismissed both the appeal and cross appeal as lacking in merit.

 At the Supreme Court

Aggrieved by the entire Judgment, the appellants filed an appeal citing several grounds on the basis of the Judges of Appeal erred in law by:

(a) Adopting a narrow interpretation of Article 47 of the Constitution consequently rendering EACC ineffective in the performance of its constitutional functions;

(b) Failing to hold that the warrants to investigate the Prof. Ojienda’s bank account were lawfully issued pursuant to Sections 23 of the ACECA as read with Section 118 and 121 of the Criminal Procedure Code;

(c) Making an omnibus finding that EACC is inflexibly bound by the provisions of Sections 26, 27 and 28 of the ACECA;

(d) Failing to appreciate that the investigation process, including obtaining of the warrants was undertaken by  EACC  in line with the provisions of Article 10 of the Constitution;

(e) Failing to find that EACC investigative function is not an administrative action hence the provisions of Article 47(1) and (2) of the constitution and the Fair Administrative Act are not applicable;

(f) Failing to find that Section 23 of the ACECA, Section 118 of the Criminal Procedure Code and Section 180 of the Evidence Act are in tandem with the provisions of Article 24 of the Constitution;

(g) Failing to appreciate the element of surprise in criminal investigations envisaged under Section 118A of the CPC; and

(h) Failing to hold that Section 30 of the ACECA is in tandem with Article 50 (1) of the Constitution.\Reliefs Sought

(a) The appeal be allowed with costs;

(b) The Decision of the Court of Appeal delivered in Civil Appeal No. 103 of 2019 (Consolidated with No. 109 of 2016) beset aside and in lieu the appeal be allowed;

(c) The High Court Judgment delivered in Petition No. 122 of 2015 be set aside and in lieu thereof the petition be dismissed with costs;

(d) A declaration that an application for warrants to investigate accounts before the Subordinates Courts is in tandem with Article 24(3) of the Constitution; and

(e) Declaration that investigations by the EACC as a law enforcement agency are not an administrative action envisaged under Article 47 of the constitution;

A second appeal sought the following reliefs:

• The appeal be allowed with costs;
• The Decision of the Court of Appeal be set aside and in lieu of the appeal be allowed with costs; and
• The decision of the High Court in Petition No. 122 of 2015 be set aside and in lieu, the Petition be dismissed with costs.

Issues for Determination

• Whether the Court has jurisdiction under Article 163 (4)(a) of the Constitution to entertain the appeal;
• Whether investigations by EACC constitute an administrative action, within the meaning of Article 47 of the Constitution, and Section 2 of the Fair Administrative Action Act; SC Petition No. 30 of 2019 (As Consolidated with) Petition No. 31 of 2019 Page 19 of 35
• Whether the Prof.Ojienda’s fundamental rights and freedoms were violated by EACC investigative actions against him; and
• Whether EACC is inflexibly bound to issue prior notice before commencing its investigations including applying for warrants.

Analysis of issues by court

• Jurisdiction

The Court was found to have jurisdiction. For a litigant to invoke the Supreme Court’s appellate jurisdiction under Article 163(4) (a) of the Constitution, it must be demonstrated that the matter in issue revolves around constitutional contestation that has come through the judicial hierarchy, running up to the Court of Appeal and requiring this Court’s final input. At the very least, an appellant must demonstrate that the Court’s reasoning and conclusions which led to the determination of the issue have taken a trajectory of constitutional interpretation or application.

 

 

• Is EACC ‘s investigative function an administrative function

Part IV of the ACECA specifically provides for EACC’s investigative powers which include powers, privileges and immunities of a Police Officer under Section 23(3), to search premises under Section 29, to apply for surrender of travel documents under Section 31, to arrest persons under Section 32 amongst others. These powers when exercised cannot be described as “administrative action” within the meaning of Article 47 but special powers conferred by a specific legal regime, to be exercised for a special purpose.

• On violations of fundamental rights and freedoms

In the absence of proof of violation of his other fundamental rights and freedoms guaranteed by the Constitution, the impugned warrants ought not to have been quashed on the basis of this claim.

 

• Was EACC required to give written notice prior to commencing investigations.

Under Sections 26, 27 and 28 of ACECA, EACC has to issue written notice. Under Section 28, the Commission may with Notice in writing to the affected parties seek a court order requiring the production of specified records in the possession of any person whether or not suspected of corruption. The Notice may be issued to any person, and not just one suspected of corruption. It may be reasonably assumed that in such a situation, the Notice is to be issued before the commencement of an investigation. The Section clearly states that such specified records may be required for an investigation, hence the court’s determination that what is envisaged, is a process of investigation that is yet to commence. This explains the fact that the Notice is not confined to persons suspected of corruption but extends to any others that the Commission believes are in possession of such records. That leaves us with Section 28 which is confined to notices requiring the production of records or property as the case may be. EACC was not required to move court under section 28 because investigations had already  been commenced.

 

Orders of court

The Petitions of Appeal dated 30th July 2019, and 31st July 2019, as consolidated, are hereby allowed.

(ii) The Judgment of the Court of Appeal dated 28th June, 2019 is hereby overturned and each party directed to bear their own costs.