Declaring secret warrants illegal will set back war on corruption
A criminal not only commits the primary crime but also many other secondary ones to both enable the commission of the initial crime and prevent its discovery.
Detection of such a criminal almost always depends on surveillance.
An investigator cannot just walk up to the suspect and inform him that he is under investigation and should willingly supply evidence against himself. It won’t work.
Anti-corruption agencies in Kenya have suffered a crippling blow that threatens not just the viability of the fight against graft but also seriously hampers the ability of these agencies to identify, investigate and resolve other forms of criminal conduct.
The courts recently ruled that investigative agencies must at all times seek to obtain information directly from a suspect before pressing charges against him. In fact, press reports say the courts also ruled that evidence obtained through a secret warrant is not only inadmissible in court but cannot support a charge if the suspect was not asked to provide it. It is void ab initio, to use a tedious legalism.
This is an extremely serious development that should spark a serious national discussion about Kenya’s ability to protect itself from criminals. It also discloses a troubling misunderstanding of basic criminology, investigation tools and practices and existing laws.
First of all, in the real world criminals do not want their crimes to be discovered. They invest a lot of time and energy in putting up counter-detection mechanisms to ensure that they are not detected and, if detected, evidence of their crimes is not available and, if available, not obtained by the authorities. This is known in the craft as a “kill chain”.
A criminal not only commits the primary crime but also many other secondary ones to both enable the commission of the initial crime and prevent its discovery. Detection of such a criminal almost always depends on surveillance. An investigator cannot just walk up to the suspect and inform him that he is under investigation and should willingly supply evidence against himself. It won’t work.
The effect of declaring secret warrants illegal is to end all forms of surveillance. It is hard to see how this serves anyone’s interests – except the criminals.
Secondly, Section 8 of the Proceeds of Crime and Anti-Money Laundering Act (PoCAMLA) prohibits the “tipping off” of suspects. If a person becomes aware that a suspect’s bank account activity has been identified and reported as suspicious and potentially criminal, he should not inform the holder of this fact. The reasoning is that if you tip off a criminal, he may evade detection by, among others, destroying the evidence or fleeing from the jurisdiction.
In a situation where one is tasked with investigating a suspicious activity report relating to a specific bank account, but cannot do so covertly under warrant, he is compelled to contravene Section 8 of the PoCAMLA. Which is futile because the criminal, having been tipped off, will most likely destroy the evidence or alert accomplices.
In Kenya, decisions of courts such as the High Court and the Court of Appeal are binding precedents on lower courts and generally apply on all cases where the facts can be shown to be similar, if not identical.
Surveillance is used in other criminal cases, not just economic crime. Take kidnapping, of which we now have hundreds of cases reported every year. Where the police suspect that a kidnapping victim is being held in a certain location, are they now just going to go knock on the door and ask the residents whether a kidnapping victim is being held against their will on the premises? Or do they secretly surveil the premises (including phone numbers) so that they can make a move when they are most likely to rescue the victim and arrest the criminals?
What about terrorism? Will the police now ask suspected terrorists to provide information against themselves?
When the consequences of a decision are so serious, the rationale for erecting such barriers against the ability of investigative authorities to discharge their objectives should be a little bit more cogently laid out. But as I have argued before, the EACC and DCI should consider continuous, relentless and focused disruption of the activities of economic criminals without necessarily seeking to prosecute them.
A raft of disruption strategies exists with which to attack the infrastructure of corruption while remaining outside the remit of the endless procedural challenges that arise in courts.
Mr Kuria specialises in anti-financial crime.