Appeal Court overrules DCJ Rawal over Economic Crimes Act provision

    Court shifts burden of proof to civil servants accused of economic crimes

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    The Court of Appeal has reinstated a section of the Economics Crimes Act requiring civil servants to explain how they acquired assets outside their salary.

    Section 55 of the Act compels civil servants to prove how they acquired such property. Further, the Ethics and Anti-Corruption Commission may commence proceedings under the section if it is satisfied after an investigation that a person has unexplained assets.

    Court of Appeal judges Festus Azangalala, Martha Koome and Hannah Okwengu said the process is not alien as in any civil litigation, the court can shift the burden of proof to an accused. They overturned Deputy Chief Justice Kalpana Rawal’s judgment delivered four years ago declaring the section unconstitutional, in a case in which a public officer was relieved of burden of proof. Subsequently, the bench ordered that the civil servant be  returned to the High Court for a fresh trial”.

    This ruling could be the turning point in the fight against corruption especially if the executive cooperates with the EACC. Many civil servants and other Public officers are the link that needs to be smashed to eliminate the grip corruption has on the Kenyan society.

    This is welcome news for the EACC which has been trying to prosecute some cases where government players are discovered to have acquired assets worth millions, sometimes running into the hundreds and billions, of shillings, only to fall at the point of ‘burden of proof’.

    It is worth noting that Singapore won its graft war this way after a lot of back and forth in courts. With the right support from the Executive, Kenya can eventually get there too. This provision not only make it risky to steal from the taxpayers but out rightly dangerous because prosecution – with realistic chances of conviction, is sure to follow.

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