- Fighting corruption requires strong investigations, adequate resources, and institutional accountability, not expanded powers.
- EACC and ODPP must respect their distinct constitutional mandates and strengthen collaboration to deliver justice.
- Effective anti-corruption efforts depend on thorough investigations, timely prosecution, and public trust in justice institutions.
Kenya’s criminal justice system entails institutions and processes ranging from crime investigation to the punishment and rehabilitation of offenders. Among these institutions are the Police, the Office of the Director of Public Prosecutions (ODPP), the Ethics and Anti-Corruption Commission (EACC), the Judiciary and correctional institutions. In the execution of their various mandates, they work both independently and interdependently. This arrangement means that the success or failure of individual entities can impact the mandates of their counterparts and the delivery of services by the entire criminal justice system. To insulate themselves against this reality, various players and institutions have, from time to time, made legal and policy proposals to enhance their individual and collective capacities and effectiveness. The latest to make such proposals is the EACC, which in the recent past has sustained calls to be accorded prosecutorial powers.
The EACC has lamented that its resolve in the fight against graft has largely been derailed by the ODPP. Among other concerns, it has accused the ODPP of the slow pace at which it verifies its files before instituting charges in court. To keep on track, it is proposing to be accorded prosecutorial powers. In the words of its chairman, the Commission wants to take charge of matters all the way to the courtroom. Among the assertions of proponents of this call is that the Commission has since built the capacity to successfully prosecute its cases. In 2024, the Kenya Human Rights Commission (KHRC) and Transparency International Kenya (TI-Kenya), in a joint press statement reacting to the withdrawal of cases by the ODPP, argued that granting the EACC prosecutorial powers would streamline the prosecution process and enhance the coordination of investigations and prosecutions.
The desire for an expansive mandate by the anti-graft agency has also met its fair share of pushback. The Director of Public Prosecutions, while appearing before a Senate Committee, opposed the proposal by the EACC, arguing that it is likely to abuse the prosecutorial powers if granted. Although the point was clearly made, the alleged basis for misuse of such powers is debatable, particularly on whether the ODPP has the moral authority to use it as an analogy. In this opposition, the ODPP has also won the support of pressure groups such as Sheria Mtaani, which has reiterated the need for accountability and separation of various criminal justice roles among key players.
Under the current legal framework, the ODPP has the singular mandate to institute and conduct criminal trials on behalf of the State by virtue of Article 157 of the Constitution. As an independent constitutional entity, the ODPP receives files and investigation reports from various investigative entities such as the EACC and the Directorate of Criminal Investigations (DCI), after which it reviews them for sufficient evidence and applicable laws. If it is satisfied, it proceeds to institute charges; otherwise, it returns the files to the relevant agencies to seal the identified gaps. As the sole entity with the mandate to prosecute, the review is bound to take time owing to the high number of files on its in-tray. This obviously slows down the efforts of the entire system in general and those of the investigative bodies in particular. This reality, coupled with the ODPP’s decisional independence, rattles its counterparts and hence the current calls for an enhanced mandate to exercise prosecutorial powers by the EACC.
As soon as the ODPP institutes cases in court, it effectively takes charge of them. If it fails to secure a conviction, it is its misstep, not that of the EACC or the DCI. As such, it is justified in satisfying itself and checking all the boxes on its decision-to-charge checklist. Apart from the legal obligation, this is also a public service aspect of prudent use of resources. Further, charges should be based on solid evidence rather than the excitement of an investigative agency that it has dragged someone to court to answer to charges.
The smooth and efficient running of constitutional democracies like ours is anchored on the separation of powers, accountability, and checks and balances among various state organs. In the administration of Kenya’s criminal justice system, these are exhibited by the ODPP’s powers to return files for further investigations to the relevant agencies, the ODPP’s legal and professional duty to institute charges only on the basis of sufficient evidence, and the Court’s powers to acquit accused persons for lack of sufficient evidence, among others. If corruption allegations are levelled against individuals on grounds other than sound evidence, they are unlikely to see the light of day. This is because, under the current order, they will either meet the scrutiny of the DPP during the review process or that of the Judiciary if the prosecution fails to prove a prima facie case. Granting the EACC prosecutorial powers would do away with the critical process of review of the facts by an independent third party. These central aspects, which touch on the probability of success of trials, public perception of public prosecutions and the liberty of accused persons, remain unexplained by the proponents of the push to accord the EACC powers to prosecute its files.
The EACC, being an investigative body for corruption and economic crime-related matters, must be evaluated on the basis of convictions and the value of assets recovered. Assertions pegged on the speed of instituting charges against suspects are therefore not merited. Time in the criminal justice system is not measured solely by how long it takes before suspects are arraigned after investigations are completed. It is also the duration matters take in court upon arraignment of suspects. This “long life” is due to various factors, including trial dynamics, the number of judicial officers and our litigious nature as a country. Therefore, the EACC’s calls for prosecutorial powers based on speed are not sound, even if they were specific to the time taken during trials. This is because the EACC cannot scramble with the Court for powers to try its own cases in Kenya’s adversarial criminal justice system.
The EACC, in its Report of Activities and Financial Statement for the Financial Year 2024/2025, published in February 2025, reported that some of the challenges it faced during the review period were inadequate funding, a lack of staff with specialised skills and inadequate specialised investigative equipment. The admission regarding staffing raises questions about the viability of assertions that the EACC now has the capacity to prosecute its cases. To meet its financial shortfalls, the EACC has advocated for enhanced budgetary allocation to strengthen its fight against graft. It has also proposed legal amendments to allow it to retain 50 per cent of assets recovered. It has, however, not elaborated on the basis for the ratio. In view of these monetary constraints, it is inconceivable how the anti-graft agency intends to deliver on an additional prosecutorial mandate should it be granted to it.
The criminal justice system is a chain. It is as strong and effective as its weakest link. Its institutions must, therefore, work in complementarity, not competition. To enhance the fight against graft, the relevant institutions must, both individually and collectively, recommit to meeting their current mandates and work more collaboratively. The EACC’s admission of serious financial and technical capacity inadequacies must urgently be addressed. These inadequacies undermine the nation’s expectation of optimum output by the agency on its mandate at hand.
Instead of calling for more powers, the Commission should demand more resources from the Exchequer, renewed collaboration from stakeholders, and greater support from the public in terms of reporting incidences, information sharing, ethical conduct and active anti-corruption advocacy.
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The Writer is a Criminologist, Certified Security Risk Management Professional and Trainer at Brand Institute of Forensics and Security.
