This archive report was first published on 29 October 2019.
Published on October 29, 2019, a day that saw Kenya plunge into a legal conundrum regarding the fight against corruption. Two separate judgments — one by the Court of Appeal and another by the High Court — have left the country in a precarious situation. Hundreds of public litigation and investigations are hanging in the balance as several applications have been filed, seeking release of documents collected pursuant to search warrants obtained by investigators from the Ethics and Anti-Corruption Commission.
The Court of Appeal ruled that investigators must give suspects notice before searching their bank accounts, among other things. In sharp contrast, Anti-Corruption Court Judge Mumbi Ngugi ruled that investigators could secretly obtain evidence, also allowing the use of force to obtain evidence in instances where investigators have sufficient reasons to believe an individual has committed a crime.
Kenya's Supreme Court is now expected to provide guidance on how investigations should be conducted while balancing the right to privacy and public interest. The Constitution grants individuals the right to be treated fairly and not to be arbitrarily searched, but also recognises that members of the public have a right to good health, economic growth, employment, and many more. The growth of technology has upped crime, and the need to crack it has never been more pressing.
