News

BY JUDY OGUTU AND NYAKUNDI NYAMBOGA

THE fight against graft has suffered a major setback following a court declaration that Section 31 of the Anti-Corruption and Economic Crimes Act is unconstitutional.

Under the section, the Kenya Anti-Corruption Commission (KACC) could obtain orders ex-parte requiring a person to surrender his passport if he were reasonably suspected of corruption or an economic crime. They could also detain the surrendered passport indefinitely pending conclusion of investigation.

With the court's declaration of the section as inconsistent with the Constitution, the powers of anti-graft czar, Mr Aaron Ringera and his team have been clipped.

KACC can no longer move the court for seizure or cancellation of a passport for purposes of undertaking investigations to their logical conclusion, It also means that they would have to return to the owners any passports they may have obtained under section 31. They must also be prepared to defend themselves against possible litigation by some of the passport holders over constitutional violations.

Powers of the principal immigration officer and his team too have also been reduced considerably. They would no longer arbitrarily impound and cancel passports.

The Immigration Act does not empower the Principal Immigration officer to revoke passports. Section 72 and 81 of the Constitution demand a due process of law before any limitation or deprivation can take place. Deprivation or limitation must be under the authority of law. Only a court of law may impose conditions such as the deposit of a passport as part of bail conditions pursuant to section 72 of the Constitution. Such an order can only be made constitutionally in respect of a person who has committed an offence or it may be issued for the purpose of ensuring that the petitioner appears before court.

Magistrate's courts too would no longer have powers to issue ex parte orders for the seizure of passports of persons investigating agencies intend to probe.

The decision ends the decade old practice vesting prerogative powers as regards passports on the Executive despite clear constitutional provisions. The right to travel is a part of the liberty of which a citizen cannot be deprived without due process of the law Yesterday, the Constitutional Court quashed the Government's decision to revoke passports of Mr Deepak Karnani and Mr Rashmin Kamani.

With the new development, two sons of businessman Mr Charnanlal Karnani could be headed back to Kenya to face their accusers over the multibillion Anglo-Leasing scandal. Passports belonging to the two businessmen were cancelled last March to allow the commission to investigate the scandal.

The two, had through their lawyer, Mr Fred Ngatia gone , to court saying the section was unconstitutional and that they were keen to come home and face their accusers. High Court judges, Joseph Nyamu, Roselyn Wendoh and Anyara Emukule challenged them to come back home and face their accusers.

"In reaching our decision at this point we have taken into account the petitioners own words in the affidavits in support of the application that they were keen to come back and face their accusers: We therefore hold them to their express bargain!" The two had complained that KACC had posted their photographs in its website and that of the Kenya police saying they were wanted.

In the police site, they argued were serial murderers, rapists "and persons alleged to have committed heinous crimes against the society". Further, they argued that they had been portrayed as fugitives who were evading arrest and prosecution.

The judges declined to declare as unlawful, a publication made that they were wanted persons. Also rejected was an order directing the respondents to delete from their websites, manuals or publication reference to them as wanted in relation to Anglo Leasing investigations. Named as respondents, were Principal Immigration Officer, KACC and Chief Magistrate's Court Kibera.

Also refused was a declaration that in view of adverse publicity they received, they would not get a fair trial They said indefinite detention of suspects passports "was clearly unconstitutional as went against Section 81(1) of the Constitution which gave every Kenyan the right to freedom of movement. "

The Director of Public Prosecution, Mr Keriako Tobiko had told the court immigration authorities had powers to refuse to issue and revoke or cancel a passport in line with the Constitution.

Orders to surrender the passports, he submitted, were not final as they could be discharged or varied and the document returned upon an application by the affected person.