News

By Nyakundi Nyamboga

Director of Public Prosecutions, Mr Keriako Tobiko, has refuted claims that the courts had dealt a blow to the anti-graft war by outlawing a section of law.

A Constitutional Court on Friday declared null and void Section 31 of the Kenya Anti-Corruption and Economic Crimes Act that empowered the Kenya Anti-Corruption Commission (KACC) to impound passports of persons it was investigating.

The section also allowed KACC to exercise the "judicial power" of imposing conditions for the use and release of the passport so impounded.

Tobiko told The Standard that the section was "more of an instrument of oppression that an aid to the fight against corruption". He said KACC had used the section to curtail free movement of citizens who had not been given an opportunity to be heard.

Under the section, KACC could move to a magistrate’s court and obtain an exparte order allowing them to impound a suspect’s passport for as long as investigations were on. The DPP said many passport holders had been condemned "to home arrest", yet no charges have been preferred against them.

However, he criticised the judges for suggesting amendments to the Constitution to provide for limitations to the right to liberty and movement.

Mr Justice Joseph Nyamu, Lady Justice Roselyne Wendoh and Mr Justice Anyara Emukule declared the Section unconstitutional in an application filed by two businessmen whose passports the Principal Immigration Officer had cancelled at the behest of KACC.

Mr Deepak Chamanlal Kamani and Mr Rashmi Chamalal Kamani had challenged the constitutionality of the Section. The DPP represented the Principal Immigration Officer and Kibera chief magistrate’s court, who the businessmen had named as respondents beside KACC.

In the 110-page judgement, the judges commended the DPP for "the candour, intellectual and professional honesty he demonstrated in his submissions". The DPP had told the court that there were no statutes governing the issuance and cancellation of passports, leaving them at the prerogative of the President.