MOI UNIVERSITY

SCHOOL OF LAW

IMPLICATIONS OF THE LAW ON WHITE COLLAR CRIME ON

CONSTITUTIONAL GUARENTEES FOR FAIR TRIAL

A RESEARCH PAPER SUBMITTED IN PARTIAL FULFILMENT OF THE

BACHELORS DEGREE IN LAW

BY

ONYANGO KEVIN WAKWAYA

LLB/ 35 / 08

SUPERVISOR

MR. MAURICE ODUOR

FLB 400 RESEARCH PAPER

2012 MOI UNIVERSITY, ELDORET, KENYA

0
DECLARATION

I hereby declare that this submission is the product of my own work and to the best of my
knowledge has not been submitted to any other academic institution for the grant of any other
educational award. Due acknowledgment has been made of all materials that were used in the
preparation for this dissertation.

Signature……………………….. Date……………………

i
DEDICATION

To my dad and mom, Mr. and Mrs George Wakwaya, you have been the pillars in my life. To
the rest of the family, I appreciate the support you have given me as I wrote this paper. You have
been of great help in each and every way and I thank God for you. You are the best.

To the Christian Union fraternity, thank you for the constant prayers and support. May the
Almighty God richly reward you.

To Ruth Mumbi, the love of my life, thank you for being there for me.

To William Owuor, my roommate and friend since first year. Thank you for your support.

ii
ACKNOWLEDGMENT

I would like to acknowledge the following persons without whom the writing of this paper would
have been near impossible.

My Almighty Father and God, for the health, capacity, wisdom, knowledge and understanding
You gave me. You are not a person but I would fail if I did not acknowledge You in this paper.
You have been my help in times of need, my refuge and my strong tower.

My family members in their entirety, thank you for the support both financially and emotionally.
The gratitude in my heart will be given a great disservice were I to try and put them into words.
You gave me the impetus to move on. All I am able to say now is thank you all.

My supervisor, Mr. Maurice Oduor, who inspired me to write on this paper and whose support I
would not have done without, thank you for showing me the right way and pointing me in the
right directions as I wrote this paper. You sparked an interest in me in your classes which led me
to do this paper. You are and will always be a wonderful teacher and supervisor. I am sincerely
grateful.

Ruth Mumbi, thank you for your support which was, is and will always be invaluable. I am
grateful I got to meet you, thank you a million.

Herman Omiti, for your academic support, guidance and instructions, I respond by
acknowledging you. Thank you. Mercy Ng’eno, Kageni Kimathi, Maina Ngararu, Victorine
Rotich, Joe Mwariri, Reuben Owoko, Joshua Orawo, Oloo Sunday and all my friends who
contributed to the writing of this paper in one way or the other, if I were to write all of your
names down, it would be my chapter one. I sincerely thank you for the input you made.

The Christian Union, for the prayers and emotional support. I salute you.

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TABLE OF CONTENTS

DECLARATIONS……………………………………………………………………………...…i
DEDICATION…………………………………………………………………………………....ii
ACKNOWLEDGEMENT……………………………………………………………………..…iii
TABLE OF CONTENTS………………………………………………………………………....iv
LIST OF ABBREVIATION……………………………………………………………………...vi
TABLE OF CASES……………………………………………………………………………...vii
LIST OF STATUTES…………………………………………………………………………...viii
CHAPTER ONE
1. Introduction……………………………………………………………………..……………...1
1.1. Crime in General…………………………………………………………..……………...…..1
1.2. Traditional Prosecution of Crime…………………………...………….…………….………2
1.3. Emergence of White Collar Crime ….…………………………….…………………………3
1.4. Background Information…………………..…………………….……………………….…..5
1.5. Research Question.………………………………...…………………………………………9
1.6. Objective……………………………………….……………………………………..............9
1.7. Significance of the Study………………………………………………………………..……9
1.8. Scope of the Study………………………………………………………………..…….…….9
1.9 Methodology……………………………………………………………….…...……………10
1.10. Literature Review……………………………………………………….……….…………10
CHAPTER TWO
2. Traditional Safeguards in Criminal Trials…………......………..………….……………..13
2.1. Trial Court…………………...……………………………………………………...….…....16
2.2. Burden of Proof…………………………………………………………………….…….....16
2.3. Standard of Proof………………………………………………………………………..….18
2.4. Right to Silence………………………………..………………………………………..…...20
2.5. Presumption of Innocence…………………..………………………………………………21
2.6. Non-Retroactivity of the Law……………………………………………………………….24
2.7.Sentencing/Punishment……………………………………...……………………………….24
CHAPTER THREE
3. Responses to White Collar Crime………………………….…………………..…………..….26

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3.1. Shortfalls of the Previous Laws on White Collar Crime………….……………..……….....26
3.1.1. The Prevention of Corruption Act……………………………………...…………27
3.1.2. Other Laws……………………………………………………….……………….29
3.2. The Law after Goldenberg Affair……………………………………………….…………..30
3.2.1. The Public Officers Ethics Act……………………………………………………30
3.2.2. The Ethics and Anti-Corruption Commission Act……….……………………..…31
3.2.3. The Constitution……………………………...…………………………………....31
3.2.4. The Anti-Corruption and Economic Crimes Act……………………...…………..32
3.3. Implication of the ACECA Provisions on the Constitutional Safeguards in Criminal
Trials…………………………………………………………………………………….……….34
3.3.1. Special Magistrates vis a vis the Right to be Heard by a Court Established under the
Constitution……………………………………………………………………………...……….35
3.3.2. Determination of Whether the Special Magistrate Courts are Courts Established as
under the Constitution…………………………………………………….……………………..36
3.3.3. Jurisdiction of Special Magistrates………………………..…………………………..38
3.3.4. Powers of Pardon of Special Magistrates………………..……………………………39
3.3.5. Presumption of Innocence and the Shift in the Burden of Proof vis a vis Presumption
of Corruption………………………………………………………………………………..…...40
3.3.6. Retroactivity of the Law……………………………………….……………………..43
3.3.7. Sentencing/Punishment for Crime……………......……………………………...……45
CHAPTER FOUR
4. Justifications for the responses………………...………………………………………..…….47
4.1. Hurdles in Prosecution of White Collar Crime in Kenya…………...………..……………47
4.2. Effect of White Collar Crime on the Society………………..……………………….….53
4.3. Character Legislation………..……………………………………………..…...……….…..55
CHAPTER FIVE

5. Conclusion and Recommendations………………………………………………………...…58

5.1. Conclusion………………………………………………………………………..…..……..58

5.2. Recommendations………………………………………………………………….…....…..64

BIBLIOGRAPHY.........................................................................................................................70

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 LIST OF ABBREVIATIONS

ACECA-Anti-Corruption and Economic Crimes Act

POEA-Public Officers Ethics Act

KACA –Kenya Anti-Corruption Agency

KACC-Kenya Anti-Corruption Commission

EACA-Ethics and Anti-Corruption Act

EACC-Ethics and Anti-Corruption Commission

AG-Attorney General

NARC-National Rainbow Coalition

JSC-Judicial Service Commission

CPC-Criminal Procedure Code

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TABLE OF CASES

Caroline Chelagat Sigila v R Criminal Appeal no.526 of 2003

Christopher Ndarathi Murungaru v Kenya Anti Corruption Commission and Another[2006] e

KLR

Dusara and Another v Republic (1989) KLR 340

Greene v The Queen [1997] 148 ALR 659

Hepworth [1955] 2 QB 600

Heydon’s case (1584) 3 Co. Rep 7a

Johnstone [2003] 2 Cr. App. R. 493

Kenya Anti-Corruption Commission v Stanley Mombo Amuti civil suit no 448 of 2008 (o.s)

Keogh v R [2007] EWCA Crim. 528

Klink v Regional Court Magistrate [1996] 3 BCLR 402

Lambert [2002]2 AC 545

Meme v Republic and Another Misc.Criminal Application No. 495 of 2003

Miller v Minister for Pensions [1947] 2 All ER 372

R v DPP ex p. Kebilene [1999]4 All ER 801

R v John Kamau Kinyanjui Crim. App. No. 544 of 199

R v Judicial Commission of Inquiry into the Goldenberg Affair & 2 Others ex p. Saitoti Misc.

Civil App. No. 102 of 2006

R v Sussex Justices ex parte McCarthy [1942] 1 KB 256

River Wear Commissioners v Adamson (1877) 2 App. Case 743.

R v Wholesale Travel Group [1991] 3 SCR 154

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R v Whyte [1988] 51 DLR (4th) 481

Sheldrake v DPP [2005] 1 All ER 237

State v Coetzee [1997] 2 L.R.C 593

Stephen Mwai Gachiengo v R (unreported) High Court Misc. App No.302 of 2000/ [2000] eKLR

Walters v R [1969] 2 AC 26 (PC)

Ward [1993] 96 Cr. App Rep 1

Webster v R [2010] EWCA Crim. 2819

Woolmington v DPP1 [1935] AC 462

LIST STATUTES

The Anti-Corruption and Economic Crimes Act (no 3 of 2003)

The Constitution 2010

The Criminal Procedure Code (cap 75)

The Ethics and Anti-Corruption Commission Act (no.22 of 2011)

The Evidence Act (cap 80)

The Local Manufactures (Export Compensation) Act (cap 482)

The Magistrates’ Courts Act (cap 10)

The Public Officers Ethics Act (no 4 of 2003)

The Prevention of Corruption Act (repealed)

The Proceeds of Crime and Anti-Money Laundering Act (no 9 of 2000)

The Restrictive Trade Practices, Monopolies and Price Control Act (Cap 504)

viii
 CHAPTER ONE

1. Introduction

1.1 Crime in general

Defining criminal law is notoriously challenging.1 A crime or misdemeanor is an act committed

or omitted in violation of public law either forbidding or commanding it.2 It is more accurate to

define crime in terms of a social harm caused rather than the act committed.3 As such, a crime is

any wrong which the government deems injurious to the public at large and punishes through

judicial proceeding in its own name.4 A crime is a crime because it consists in wrongdoing which

directly and in serious degree threatens the security or wellbeing of the society and because it is

not redress able only by compensation of the party injured.5 A crime can therefore be defined in

many ways, but the basic character in definition is that the act in question is such that it affects

the society in a way that the state has to step in and instigate criminal proceedings against the

offender. In a nutshell, it is an offence against the society (its norms, traditions or morality).6

From the foregoing, the purpose of law in the society will thus be to enforce the morality of the

society.7 One of the reasons proposed as to why the law should not be concerned with enforcing

1
Ronald N. Boyce et al, Criminal Law and Procedure: Cases and Materials (10th ed., 2007).
2
Ibid.
3
Ibid.
4
Ibid.
5
Carleton Allen, Legal Duties and other Essays in Jurisprudence (1931).
6
Professor Wechsler, ‘The Challenge of a Model Penal Code’ (1952) Harvard Law Review 1097 quoted in Tertius
Geldenhuys and J.J. Joubert (eds.) Criminal Procedure Handbook (1994). He states that the purpose of law is to
protect the society from its own errant members.
7
Though in the Wolfenden Report (Cmud. 247, 1957) it was postulated that the law ought not to play any role in the
enforcement of a concept of morality. The Report stated that “…it is not the function of the law to intervene in the
private lives of individuals, or to seek to enforce any particular pattern of behavior, further than is necessary to carry
out the purposes we have outlined.”

1
morality is that there is no societal morality, that is, there is no morality that rightly cuts across

the board.8

Even though this may be the case, it has been generally perceived that the law prohibits that

which is considers harmful to the society.9 Crime for the most part is considered a crime if it is

both objectionable by the society and prohibited by statute or law.10 However, this is not the

present state of affairs, as there are some acts considered crimes by statute but not objectionable

in the society.11 This is because crimes are not static or stagnated. They seem to mutate or to

change with the changes and developments in the society and what is viewed as a comparatively

harmless-because infrequent-offence at one stage may later assume such proportion that it

becomes a serious threat to society.12 This may then imply that the reason a crime may be a

crime on paper but not repulsive to the society is that the law may enact a law which prohibits a

crime before the perception of the society changes.

1.2 Traditional prosecution of crime

In the prosecution of crimes, the state is the complainant while the adversary is referred to as the

suspect or defendant. The state takes over the lodging of the complaint against the defendant

because it is considered that the act done is against the society as a whole and it will not be

8
Consider acts such as prostitution which have been legalized in some jurisdictions though considered immoral, see,
Janice Raymond and Melissa Ditmore, Debating Legalized Prostitution at
http://www.humantrafficking.org/updates/643 as at 21 November 2011; see also Caroline Chelagat Sigila v R
Criminal Appeal no. 526 of 2003 where the court stated that an act, however morally reprehensible, does not assume
criminal character unless it has been so defined.
9
Supra n.6
10
Supra n.1 at pp2 states that a crime is not a crime until it is recognized by law.
11
Consider white collar crimes. Marshall B. Clinard, The Black Market: A Study of White Collar Crime (1952)
posits that white collar criminals are rarely prosecuted because the Acts of the offenders did not pose the same moral
dilemma as ordinary offences.
12
Brian Slattery, A Handbook on Sentencing: With particular reference to Tanzania (1972).

2
considered sufficient for the victim to institute the criminal proceedings.13 The state therefore

uses the resources at its disposal to institute the criminal proceedings against the accused.

There are several factors that must be considered in a criminal trial. This is because of the

perceived inequality of resources between the state and the accused.14 The factors to be

considered start from the very first steps in a criminal procedure, that is, the arrest of the accused

to the final step which is the conviction and sentencing of the accused or his acquittal thereof.15

These include the existence of a guilty mind (mens rea) and the commission of the guilty act

itself (actus reus),16 the burden and standard of proof of a matter alleged, the presumption of

innocence and right to a speedy trial among others. These are considered as constitutional

safeguards in a criminal trial.17 In the case of Ward,18 the court stated that criminal justice system

should be developed so as to reduce the risk of conviction of the innocent to an absolute

minimum and therefore, all these safeguards are therefore placed so as to protect the innocent

and convict the guilty.

1.3 Emergence of white collar crime

As of 1939, a new concept of crime was coined by Edwin Sutherland; it was termed white collar

crime. He defined these crimes as crimes committed by persons of high social status and

13
Supra n.6
14
Roberts, P., ‘Taking the Burden of Proof Seriously’ (1995) Criminal Law Review 783.
15
We shall only consider those relevant to this paper, which shall be discussed in detail later in the paper.
16
This is what is known in law and legal parlance as actus non facit reum nisi mens sit rea.
17
These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust
convictions, with resulting forfeitures of life, liberty and property. Reason for this is that the accused has at stake
interest of immense importance, both because of the possibility that he may lose his liberty upon conviction and
because of the certainty that he would be stigmatized by the conviction. See Ronald N. Boyce, supra n. 1 at pp9
18
[1993] 96 Cr. App Rep 1.

3
respectability in the course of their occupation.19 This new concept of crime was quite

distinguished from the traditional view of crime as it was being orchestrated by the high and

mighty. He was however not the first to try coin a term for the high social class deviance.20 Other

scholars have also further contributed to the definition of the term white collar crime.21 The

definite definition of this term has however not been determined.22

This form of crime tends to depart from the traditional forms of crimes in various aspects such as

their lack of eliciting moral dilemmas,23 the difficulty in identifying victims of the crimes,24 the

difficulty in their detection,25 the players26 et al. These have been referred to as the ambiguities

of the white collar crimes.27 With these in mind, the question that is to be asked is whether this

concept of crime should have the same kind of laws prohibiting it and whether to it ought to be

prosecuted in the same way as traditional crimes. E. Sutherland proposed that there should be a

deconstruction of criminal law concept such as presumption of innocence and the requirement of

19
See, Sutherland E.H., ‘White-Collar Crime: The Uncut Version’ in David M. Ermann and Richard J. Lundman
(eds.) Corporate and Governmental Deviance: Problems of Organizational Behaviour in Contemporary Society
(2002) 67-81.
20
See Ross E., ‘The Criminoid’ (1907) 90 The Atlantic Monthly, 44-55 where Edward Ross, as early as 1907, had
pointed out that the rich and powerful were never punished for their deviances. He referred them to as the
“criminoid” which he defined as “those who prosper by flagitious practices which have not yet come under the
effective ban of public opinion. Often indeed they are guilty in the eyes of the law, but since they are not culpable in
the eyes of the public and in their own eyes, their spiritual attitude is not that of the criminal.
21
See Frank Hartung, ‘White Collar Offences in the Wholesale Meat Market Industry in Detroit’ (1950), American
Sociological Review; Marshall B. Clinard, The Black Market: A Study of White Collar Crime (1952); Stuart P.
Green, ‘The Concept of White Collar Crime in Law and Legal Theory’ (2004) 8 Buffalo Criminal Law Review 101
among others.
22
Stuart P. Green, ‘The Concept of White Collar Crime in Law and Legal Theory’ (2004) 8 Buffalo Criminal Law
Review 101 introduces the concept of family resemblances because, according to him, strict definition may leave out
some Acts. These crimes should be defined by the characteristics they share.
23
Supra n.11
24
Stuart P. Green, Lying, Cheating and Stealing: A Moral Theory of White-Collar Crime (2006).
25
Consider crimes such as the Goldenberg scandal inter alia, whose detection came after a lot of money had been
lost; Green, supra n.22 states that these crimes may commence as legitimate transactions only to mutate later into
criminal conduct.
26
Refer to the definition by Edwin Sutherland, supra n.19. In Kenya the involved persons have mostly been
politicians and businessmen men who in one way or another have some form of connection with the government.
They are considered to possess so much money that they are able to buy their way out of the justice system.
27
Stuart P. Green, ‘Moral Ambiguities in White Collar Criminal Law’ (2004) 18 Notre Dame Journal of Law,
Ethics and Public Policy 501-519.

4
mens rea in criminal convictions.28 With the relaxing or derogating of the laws on white collar

crimes arises another concern; whether these measures contravene the constitutionally laid down

traditional safeguards in criminal trials and whether these conflicts, if any, can be reconciled.

1.4 Background Information

In 1987, a major scam started brewing in the country. This is the infamous Goldenberg Scandal

which involved two companies, that is the Goldenberg International Limited and the Exchange

Bank Limited.29 The scandal was subtle with the perpetrators relying on lack of or inadequate

laws to propagate their crime.30 This scam was perpetrated by (mis)use of The Local

Manufactures (Export Compensation) Act31 whose purpose was to provide for compensatory

payments to be made in respect to certain locally manufactured goods which were to be exported

from Kenya and for matters connected therewith and incidental thereto.32

The scam began by the proposals to amend the Act to provide for 35% export compensation

instead of the 10% provided for.33 Goldenberg International Limited also requested for sole

rights to be the exporters of gold and diamond, gems which are not found in Kenya.34 This crime

was so shrouded in mystery that for two years it went on without being detected by the relevant

28
Supra n. 19
29
Government of Kenya, (2006) The Report of the Judicial Commission of Inquiry into the Goldenberg Affair,
herein the Report.
30
The law on corruption then was The Prevention of Corruption Act (cap 65) (repealed). Some of the shortcomings
of the Act were that it failed in s 3 (1) and (2) in clearly outlying what the crimes of white collar entailed, for
instance, what would be the case where junior officials were coerced or where there was no pecuniary benefit
accruing to perpetrator? This shortcoming has been attributed to its definition of corruption.
31
Cap 482 Laws of Kenya.
32
See s 2 where it defined eligible goods as those that have been produced wholly in Kenya or have been produced in
Kenya and the total value of imported materials or materials of undetermined origin which have been used at any
stage of the manufacture does not exceed 70% of the ex-factory value of the good.
33
Supra n.29 at para 78. It was granted the 35% in spite of the 20% maximum compensation provided for, see para
183 of the Report.
34
Supra n.29 at para 80. Consider also para 131.

5
authorities and any opposition to it was silenced by either harassment, intimidation or sacking of

whistleblowers.35

The Scandal was unraveled in June by questions raised by Hon. Jilo Fulana during proceedings

in Parliament.36 This started a series of investigations which unraveled the faces behind the

Goldenberg Affair and the culprits charged subsequently. These cases dragged on for a long

period of time, with most of the cases stalling.37 Apart from the dragging on of these cases, there

were other attacks on the prosecution of the cases against the promoters of the Goldenberg

Affair. There was a constitutional challenge against the agency responsible for the prosecution of

the crimes (then the Kenya Anti-Corruption Agency). It was being argued that the Agency was

unconstitutional.38

Other than the declaration of the unconstitutionality of the agency, the perpetrators of the scandal

threw everything they could at the trial process that was instituted to determine the guilt or

otherwise of the persons who were implicated by KACA, that is the Judicial Commission of

Inquiry into the Goldenberg Affair, in order to scuttle it.39 They finally succeeded in scuttling the

35
For instance, in para 523 of the Report, it states that between November 1990 and June 1992, Goldenberg
International Limited operated with little, if any, particular complaint from the general public and the Government
and in para 485, Pattni claims that he threatened to cause the dismissal of Mrs. Mwatela who was opposing the
progress of Goldenberg International Limited. Also consider paras 794-812 which lists the names of persons who
were affected when they tried to probe or raise suspicions as to the affairs of Goldenberg International Limited.
Consider the sacking of David Munyakei. See also Ayub Savula and Cyrus Ombati, ‘Whistleblower Shot After
Exposing Scam’, The Standard 26 May 2006 and Jaindi Kisero, ‘We Must Seek Ways to Protect Whistleblowers’,
Daily Nation 12 December 2006
36
See para 523 of the Report.
37
See para 792 of the Report.
38
In Stephen Mwai Gachiengo v R (unreported) High Court Misc. App No.302 of 2000 / [2000] eKLR the Kenya
Anti-Corruption Agency was held to be unconstitutional in so far as it undermined the powers and authority of the
Attorney General and the Commissioner of police (refer to s 10 and 11 of The Prevention of Corruption Act
(repealed) vis a vis s 26 of The previous Constitution) as conferred on them by the Constitution. It was therefore
declared illegal and disbanded.
39
There were several applications after applications for one reason or the other, leading to one of the commissioners
stating “…while the parties who originated the various suits were within their constitutional rights to do so, with
tremendous respect for them, the suits were clearly unnecessary and ill motivated” at para 36 of the Commission’s
Report.

6
whole process as seen in the decision of the court in the case of R v Judicial Commission of

Inquiry into the Goldenberg Affair40 where the sitting justices stated that “commissions can

never be substitute for police as powers to investigate are vested in the police.” This inevitably

rendered the whole process a nullity.

The difficulty facing the prosecution of the Goldenberg Affair propagators and general

corruption charges preferred against them led the Parliament to enact The Anti-Corruption

Economics Crimes Act,41 which sought to address the problems so raised. The Act was enacted

after the Goldenberg Affair and it may be deemed to have been so enacted so as to deal with the

Goldenberg type crimes in the event of their occurrences. It has provisions that tend to imply an

impingement on the traditional laid down safeguards in criminal trials such as provisions that

impute corruption,42 imply a departure from the presumption of innocence,43 the need for

prosecution of the crimes by special magistrates,44 the statutory shift of the burden of proof45 et

al. It is these provisions that this paper would outline, their impingement on the constitutionally

laid down criminal procedures and whether such impingements are justified and finally, whether

these justifications are worth derogating from the constitutional criminal trial safeguards.

40
Misc. Civil App No 102 of 2006.
41
Act No 3 of 2003.
42
See s 58 which provides that if a person is accused of an offence under Part V an element of which is that an Act
was done corruptly and the accused person is proved to have done that Act, the person shall be presumed to have
done that Act corruptly unless the contrary is proved
43
S 62 provides that upon a charge of corruption, a person may be suspended at half pay effective from the date of
charge.
44
S 4 (1) provides that notwithstanding anything that may be contained in The Criminal Procedure Code, or in any
other law for the time being in force, the offences specified in this Act shall be tried by special Magistrates only.
Does it exclude the jurisdiction of the High Court by declaring that the Special Magistrates have the sole jurisdiction
to hear and determine all criminal cases under the Act?
45
See s 55 (5) which provides, inter alia, that the court may require the person, by such testimony and other evidence
as the court deems sufficient, to satisfy the court that the assets were acquired otherwise than as the result of corrupt
conduct.

7
Other than this Act, there was the Public Officers Ethics Act (No.4 of 2003) and Proceeds of

Crimes and the Anti-Money Laundering Act (No.9 0f 2009), which is the most recent Act with

regard to the law against white collar crime. There was also the promulgation of The Constitution

2010 which brought with it new developments in the law on white collar crime, for instance by

providing a whole chapter dealing with leadership and integrity46 and also providing for an

institution that will help fight this vice.47 These will also be considered (with the exception of the

Proceeds of Crimes and Anti-Money Laundering Act) in this paper with regard to the purpose for

their being there in the fight against white collar crime and whether they in any way impinge on

the laid down procedure in criminal trials.

There have been other like-crimes since the Goldenberg scandal that have rocked this country.

These happened after the passing of the Anti-Corruption and Economic Crimes Act and the

Public Officers Ethics Act. These include Anglo Leasing,48 the Triton Oil saga,49 the Maize

scandal,50 the water scandal51 and most recently the misappropriation of the Kazi kwa Vijana

46
At Chapter Six.
47
S 79 provides that Parliament shall enact legislation to establish an independent ethics and anti-corruption
commission, inter alia. The Parliament has enacted the Ethics and Anti-Corruption Commission vide The Ethics and
Anti-Corruption Commission Act, no. 22 of 2011.
48
BBC News, Kenyan Outrage at Graft Claim at http://www.bbc.co.uk/2/hi/africa/4697676.stm updated 10
February 2006 as visited on 23November 2011.
49
Jaindi Kisero, ‘KACC to Probe $ 98.7 Million Triton Oil Theft at Kenya Pipeline’ The East African, 10 January
2009 :
A day before the dramatic sacking of Kenya Pipeline Company Ltd (KPC) managing director George
Okungu late last Friday, Energy Minister Kiraitu Murungi had instructed the Kenya Anti-Corruption
Commission to move into the firm to investigate the circumstances under which millions of litres of
petroleum held in trust on behalf of financiers and international traders were irregularly released to the
troubled Triton Oil Company.
50
David Okwembah and Noah Chepleon ‘Revealed: Shs. 150 Million Maize Scandal’ The Daily Nation, 10 January
2009 stating “…more than 80,000 bags of maize valued at Sh150 million have been allocated to briefcase millers
and a defunct company in Nakuru at a time when the country is facing a serious shortage of maize.”
51
Alphonce Shiundu, ‘Graft Allegation Dominate MPs Probe on Water Scandal’ The Daily Nation 15 March 2011
reporting that “Parliament's probe into the multi-billion scandal in the Water Ministry was turned into an arena of
corruption and bias allegations.”

8
funds.52 The common thread running through these crimes is that there have been no successful

prosecutions. One may wonder whether this is so because the crimes involve the high and mighty

of the land or whether the difficulty in prosecution is because these crimes are new concepts of

crimes which the law has not gotten round to addressing.

1.5 Research Question

Does the Kenyan law on white collar crime impinge on the constitutionally laid down safeguards

in the prosecution of traditional crime?

1.6 Objectives

i) Discuss and determine whether and the extent to which the law on white collar crime

impinges on the traditional constitutional safeguards in criminal law and the

justifications thereof.

ii) Discuss and determine whether the justifications afford derogation from the

traditional constitutional safeguards in criminal law.

1.7 Significance of the study

This study will be of importance to first and foremost, the Parliament as they are constitutionally

mandated to make laws, of which should not be in contravention of the Constitution. Secondly, it

will be of benefit to legal scholars and lawyers in any constitutional matter involving prosecution

under The Anti-Corruption and Economics Crimes Act53 and any other statute that will be

52
‘Marende Rejects Kazi Kwa Vijana Audit Reports’ The Standard 1 November 2011 that “House Speaker Kenneth
Marende has rejected two documents tabled in Parliament over the alleged financial scandal involving the Kazi Kwa
Vijana project fund, which is under the Office of the Prime Minister.”
53
Supra n. 41

9
referred to in this paper. Lastly, it will benefit the legal field of white collar crime in Kenya,

which is still in its development stages by providing materials for study.

1.8 Scope

The paper will be concerned with the law and practice of white-collar crime in Kenya. In looking

at this, the paper will have to touch on aspects on the law of evidence, constitutional law and

criminal law.

1.9 Methodology

The paper will refer to textbooks written on the subject and on reports of commissions that have

been involved in white-collar crime trials. It is going to focus on document analysis. This is

because the subject on white-collar crimes is mostly found in written books and materials which

are readily available and cheap as compared to field work. Secondly, conducting research

through other means such as field work or questionnaires is likely to avail little if any

information, because it is unexpected for someone to talk about corruption experience without

weighing the repercussions that may ensue.

1.10 Literature Review

White collar crime is an evolving branch of criminal law. Sutherland E., in White Collar Crime:

The Uncut Version,54 defined the crime as that which is committed by persons of respectability

and high social status in the course of his occupation. This definition, though considered as a

definition given by a social scientist and not a legal scholar, gave rise to a series of studies which

sought to give a better understanding of the crime. This study on white collar crime has so

54
As reproduced in David Ermann and Richard J. Lundman (eds.), Corporate and Governmental Deviance:
Problems of Organizational Behaviour in Contemporary Society (2006)

10
advanced that some scholars such as Kam C. Wong have postulated that when the re-

conceptualization had been through, what was left of Sutherland’s earth breaking concept was

nothing more than a historical landmark.55 It is from these studies that we seek to understand the

concept of white collar crime.

Ronald N. Boyce et al, Criminal Law and Procedure: Cases and Materials (10th ed., 2007)

launches the discussion in this paper by giving us a definition of crime and what crime was

deemed to be in the traditional understanding of crime, that is, before the emergence of white

collar crime. This is also done by Carleton Allen in Legal Duties and Other Essays in

Jurisprudence (1931) who advances the traditional elements of crime such that the crime must be

a wrong directly and in serious degree threatening the security or wellbeing of the society and

requires the government’s intervention because the harm is considered so great as to be beyond

individual redress. The two authors help us understand the customary view that exists toward

anything termed a crime or offence. Roberts, P., ‘Taking the Burden of Proof Seriously’ (1995)

Criminal Law Review 783 then sheds light on the laid down procedure of criminal law

prosecutions and by extension, the constitutionally laid down safeguards I criminal trials.

Stuart P. Green contributes to the discussion in ‘The Concept of White Collar Crime in Law and

Legal Theory’ (2004) 8 Buffalo Criminal Law Review by trying to define the term white collar

crime and concluding that such definition is likely to be biased as it would exclude some acts

which should be considered as white collar crimes. The conclusion is therefore to use what he

termed as family resemblances, defined by the characteristics they share. The paper, by using

55
See Kam C. Wong, ‘From White Collar Crime to Organizational Crime: An Intellectual History’ (2005) 14
Murdoch Electronic Law Journal

11
this article, introduces us to the difference or uniqueness of white collar crimes as relates to the

traditionally conceived notion of crime.

Marshall Clinard in The Black Market: A Study of White Collar Crime (1952), then introduces

the aspect of prosecution of white collar crimes. He states the reason why most white collar

crimes are not prosecuted successfully and in his reasoning includes the moral dilemma of these

crimes. This moral dilemma has also been articulated by Stuart Green in the article ‘Moral

Ambiguities in White Collar Criminal Law’ (2004) Notre Dame Journal of Law, Ethics and

Public Policy, listing the difficulties or ambiguities related to the concept of white collar crimes.

Aside from books and articles, the paper considered reports such as The Report of the Judicial

Commission of Inquiry into the Goldenberg Affair (2006) which details what purportedly

happened in the Goldenberg Scandal-the background, the loopholes in the law then, the key

dramatis personae, the amount of money lost and recommendations. It also states the hurdles

faced in prosecution of the perpetrators. This helps us further understand the concept of white

collar crime, especially within our locality, that is, Kenya.

The difficulty in prosecuting the white collar criminals takes us back to E. Sunderland who

proposed a deconstruction of criminal law concepts such as presumption of innocence and

requirements of mens rea in criminal convictions.56 These books somehow fail to appreciate the

constitutional implications on the constitutional safeguards in criminal proceedings in their

proposals of the way forward for prosecuting white collar crimes. This is what this paper seeks to

establish.

56
Supra n.54

12
 CHAPTER TWO

2. Traditional safeguards in criminal trials

Every living person has some form of rights and freedoms that should be protected by the

State57. This is because, for instance, according to the Social Contractarian theory of the

formation of the government, it was posited that the people gave up some of their powers into a

central pool.58 This central pool had the powers to control the interactions as among the people

and also the interaction between the people and the central pool, herein the state.59 This control

was meant to bring order to a state of nature that had become nasty, brutish and short due to the

limited resources available to a rapidly growing population.60 The notion of the protection of

rights and freedoms also holds true in the case of an accused person, and even a convicted

felon.61 This is true even though one or more of their liberties may be curtailed. For instance, a

person convicted of theft, though having his/her right to association being limited, still has the

right to life and this is the reason why the state has to employ its resources in keeping such a

person alive, for instance by providing food. However, before a person is convicted of any

offence, there are certain specific procedures that must be adhered to in the trial process,

57
The Constitution posits in Article19 (2), that the purpose of recognizing and protecting human rights and
fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and
the realization of the potential of all human beings.
58
See Thomas Hobbes quoted in Michael Oakshott, ed., Leviathan: or the Matter, Forme and Power of
Commonwealth Ecclesiastical and Civil (1946) at pp 85 where he states , inter alia “…that man be willing, when
others are so too, as far-forth as possible, as for peace and defense of himself he shall think it necessary to lay down
his right to all things…”
59
Jean Jacques Rousseau, ‘The Social Contract’ in Thys E.,(ed.) Everyman’s Library (1913) at pp14
60
Thomas Hobbes supra n.58 at pp. 82
61
Article 19 (3) of the Constitution provides that the rights and fundamental freedoms in the Bill of Rights inter alia,
belong to each individual and are not granted by the State. It further provides in article 20 (2) that every person shall
enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of
the right or fundamental freedom.

13
beginning from the time the person is charged of an offence up to the time the accused is

convicted of the offence/crime. This is referred to as the criminal procedure.62

As already stated, every person has rights and freedoms that have to be protected, even an

accused. It is because of this that the Constitution provides for specific safeguards in the criminal

procedure.63 It is considered that the Constitution being the grund norm of a state, by providing

for these safeguards, protects the accused person from dubious and unjust convictions, with

resulting forfeitures of life, liberty or property.64 The reason for this is that the accused has at

stake interests of immense importance, both because of the possibility that he may lose his

liberty upon conviction and because of the certainty that he may be stigmatized by the

conviction.65 Criminal justice should therefore be developed so as to reduce the risk of

convicting the innocent to an absolute minimum.66 It seeks not only to provide fair procedures

but also to maintain the appearance of fairness in the application of those procedures. Justice

must satisfy the appearance of justice.67 In doing this, the law has developed mechanisms or

safeguards that are referred to as the constitutional safeguards in criminal trials and that are

62
Herbet L. Packer, ‘Two Models of the Criminal Process’ (1964) 113 University of Pennsylvania Law Review 1-68
at 1 states that:
People who commit crimes appear to share the prevalent impression that punishment is an unpleasantness
that is best avoided. They ordinarily take care to avoid being caught. If arrested, they ordinarily deny their
guilt and otherwise try not to cooperate with the police. If brought to trial, they do whatever their resources
permit to resist being convicted and sent to prison. Their efforts to secure freedom do not cease. It is a
struggle from start to finish. This struggle is often referred to as the criminal process…it can be described,
but only partially and inadequately by referring to the rules of law that govern apprehension, screening and
trials of persons suspected of committing a crime.
Professor Nico Steyner, below n.63, terms this as the due process.
63
See Professor Nico Steyner, Constitutional Criminal Procedure: A Commentary on the Constitution of the
Republic of South Africa (1988) where he states inter alia that “… the Constitution protecting the rights of the
individuals, including those of the accused and convicted persons is now supreme.”
64
Ronald N. Boyce et al, Criminal Law and Procedure: Cases and Materials (10th ed. 2007) at pp9
65
Ibid
66
Ward [1993] 96 Cr App Rep 1 at pp.52
67
Wayne R. Lafave et al, Criminal Procedure (2nd ed. 1954) at pp.204

14
considered in this chapter.68 This paper will only consider the safeguards relevant to this

discussion.

As can be seen, the purpose of these constitutional safeguards is chiefly for the benefit of the

accused and for the reasons already stated above. These safeguards centre on what has come to

be known as the right to a fair trial.69 Every trial must be conducted in such a manner that it does

not unduly prejudice the accused. Anything that may prejudice, or, that appears to prejudice this

process, is given a strict interpretation by the courts.70 This is why the courts have held that

justice should not only be done but it must manifestly be seen to be done,71 in accordance with

the rules of natural justice. It must be seen by the human eye that there was no injustice that took

place during the trial process. Having said this it is proper that the paper looks at these

constitutional safeguards.

68
See Herbert L. Packer, supra n.62 at pp16 where he states:
The combination of stigma and loss of liberty that is embodied in the end result of the criminal process is
viewed as being the heaviest deprivation that government can inflict on the individual. Furthermore, the
processes that culminate in highly effective sanctions are in themselves coercive, restrictive and
demeaning. Power is always subject to abuse. Sometimes subtle other times as, as in the criminal process,
open and ugly. Precisely because of its potency in subjecting the individual to the coercive power of the
state, the criminal process must on this model be subject to controls and safeguards that prevent it from
operating with maximal efficiency.
69
This is the responsibility of the courts. In Kenya, the right is provided under article 50 of The Constitution. Article
50 (1) states that every person has the right to have any dispute that can be resolved by the application of law
decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or
body.
70
These circumstances include, for instance, situations where the Constitutional safeguard of the presumption of
innocence is impinged by statutory provisions, as will be looked at later in the paper.
71
R v Sussex Justices ex parte McCarthy [1942] 1 KB 256 at pp259 where Lord Hewart describes the importance of
fairness in trial as:
Not merely of importance but of fundamental importance, that justice should both be done and manifestly
be seen to be done…the rule that nothing is to be done which creates even a suspicion that there has been
an improper interference with the course of justice.

15
2.1 Trial Court

The trial court is the court wherein the matter to be tried is heard. Specific courts are mandated to

try or hear specific matters.72 The courts are established in the Constitution with provision for the

Parliament to enact statutes creating other courts73 and jurisdiction of the subordinate courts.74

What is of importance in this respect is the jurisdiction of the court. The trial court must have

jurisdiction to hear the matter before it.75 The jurisdiction may be in terms of geographical

coverage, sentencing matters and whether the case is of a first instance (original jurisdiction) or

appellate matter.76 The court should also endeavor to hold the trial publicly and openly.77 The

court should be impartial as this is required for justice to be seen to be done. The public trial puts

the court officers in the public limelight and therefore under the scrutiny of the public, promoting

impartiality of the officers.78

2.2 Burden of Proof

Proof is a term with variable meaning. In legal discourse, it may refer to the outcome of the

process of evaluating evidence and drawing inferences from it or it may be used more widely to

refer to the process itself and/or to the evidence which is being evaluated.79 The term “burden of

72
In establishing the Judiciary, The Constitution establishes courts and seeks to draw distinctions among them along
three different lines that are both hierarchical and horizontal. This is in Chapter Eight of The Constitution.
73
Article 162 (2) of The Constitution provides inter alia, that Parliament shall establish courts with the status of the
High Court.
74
Article 169 (2) of the Constitution states that Parliament shall enact legislation conferring jurisdiction, functions
and powers on the courts established under clause (1) (subordinate courts).
75
The Constitution provides for the jurisdictions of each court established under it. Also, The Magistrates Courts Act
(cap 10) and the first schedule to The Criminal Procedure Code (cap 75) indicate which court has the necessary
jurisdiction to try an offence.
76
Ibid. Also see Dennis Ian below n.79 at pp 469, “Protecting the court’s freedom of assessment of guilt from
presumptions of fact or law that assumed guilt was necessary to uphold the courts duty of impartiality and the
fundamental principle of the rule of law.”
77
See Justice Melunsky’s observance in Klink v Regional Court Magistrate [1996] 3 BCLR 402 that “it is of
essence of a democratic society that the criminal law should be administered publicly and openly.”
78
ibid
79
Ian Dennis, The Law of Evidence (3rd ed. 2007) at pp4

16
proof”, also known as “onus of proof”, refers to the legal obligation on a party to satisfy the fact

finder to a specified standard of proof, that certain facts are true-facts in issue-which the legal

rights and liabilities of the parties to the case depend.80

In law, it is generally recognized that there are two principal kinds of burden, that is, the legal

burden and the evidentiary burden.81 Different terminologies are sometimes used to emphasize

different characteristic of the burden, the most common alternatives are persuasive burden,

probative burden and fixed burden of proof, which is also the legal burden.82 According to Ian

Dennis,83 this burden does not shift during the trial process. Burden of adducing evidence is also

called the ‘evidential burden’ to contrast it with the ‘legal burden’. It is the obligation to adduce

sufficient evidence to raise an issue for the court to consider.84

Having differentiated the different types of burden, it is then of importance to know who carries

which burden in a criminal trial. In the landmark case of Woolmington v DPP,85 the judge in the

trial court placed on the defendant the burden of proof of lack of mens rea by directing the jury

that once the prosecution had proved that the deceased had died at the hands of the defendant, it

was presumed to be murder unless the defendant could satisfy the jury that it was an accident.

The House of Lords held decisively that this was wrong and allowed the appeal.86

80
Ibid at pp 438
81
Adrian Keane, The Modern L aw of Evidence (3rd ed. 1994) at pp 53
82
Supra n.79 at pp 440
83
ibid
84
ibid
85
[1935] AC 462
86
Lord Sankey stated:
Throughout the web of English Criminal Law, one golden thread is always to be seen, that it is the duty of
the prosecution to prove the person’s guilt subject to…the defense of insanity and subject also to any
statutory exception…the principle that it is for the prosecution to prove the guilt of the prisoner is part of
the English Common Law and no attempt to whittle it down can be entertained.”

17
The placing of this burden upon the prosecution can be alluded to the accused’s right of being

presumed innocent until proven guilty.87 The prosecution has an evidential burden of making out

a case for the defendant to answer a prima facie case, as it is sometimes known.88 As part of

proving guilt, the prosecution will not only have to prove the elements of the offence (unless the

defendant admits them), but also that the offence was not committed under provocation or in

self-defense, or any other qualifying factor of defense.89 The general rule therefore is that the

legal burden of proof rests with the prosecution to prove that the accused is guilty of whatever

offence is preferred against them. This burden has been held to shift in certain circumstances.90

The concern with the reversing of this onus or the shifting of the burden from the prosecution to

the defendant will be considered under the discussion on presumption of innocence.

2.3 Standard of Proof

“The term standard of proof” also known as the “quantum of proof” refers to the degree of

probability to which facts must be proved to be true.91 In adjudicative proceedings, truth is

generally conceived to be a matter of probability and since there can be degrees of probability, a

question rises as to what is the appropriate degree for the proceedings in question. It has been

proposed that because of the inherent limitations of human knowledge, no party is ever required

to prove facts to a standard of absolute mathematical certainty.92

87
Presumption of innocence, below
88
Supra n.81
89
Supra n.79 at pp441
90
But does it shift in reality? See Adrian Keane supra n.81 at pp 54 where he states that “the only sense in which the
legal burden may be said to shift is on the operation of a rebuttable presumption of law. The legal burden is
discharged once, at the end of the trial when all evidence has been adduced.”
91
Supra n.79 at pp438
92
Supra n.79 at pp 438

18
The standard of proof for a criminal case or trial is at a higher degree than the standard required

in a civil case.93 This is because if a court was allowed to find a person guilty on the balance of

probability in a criminal case, then many more factually guilty persons could be successfully

prosecuted, but so too could many more who were factually innocent. If on the other hand it was

required that guilt be proven beyond any doubt at all, whether reasonable or not, then few

successful prosecutions could be brought. This would protect people who were actually innocent

but would allow vast majority of guilty suspects to escape conviction. The standard of proof

required in this instance amounts to a compromise between two potentially conflicting aims; to

convict the guilty and acquit the innocent.94

In Miller v Minister for Pensions,95 Denning J. described standard of proof in criminal case as:

The…degree of cogency…required in a criminal case before an accused person is found guilty…is well
settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable
doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it
admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as
to leave only a remote possibility in his favor which can be dismissed with the sentence, ‘of course it is
possible, but not the least probable’ the case is proved, but nothing short of that will suffice.

The very high standard of proof required in a criminal case minimizes the risk of a wrongful

conviction. It means that someone whom, on the evidence, the fact finder believes is ‘probably’

guilty or ‘likely’ to be guilty will be acquitted since these judgments of probability necessarily

admit that the fact finder is not ‘sure’. The acquittals of guilty persons who might otherwise have

been convicted had the standard been that of balance of probability is the price that has to be paid

93
The standard required for a criminal case has been put as ‘beyond reasonable doubt’ while that of a civil case is on
the ‘preponderance of probability’. See Adrian Keane, supra n.81 at pp 54.
94
Andrew Sanders et al, Criminal Justice (4th ed., 2010) at pp 11
95
[1947] 2 All ER 372

19
for the safeguard provided by the ‘beyond reasonable doubt’ standard against wrongful

conviction.96

The standard of proof is different with regard to the different burdens of proof borne by the

parties to a case. The standard of proof required of a defendant is lower than that of the

prosecution.97 It is not enough to state that the fact finder should be satisfied of the accused

guilt.98 The standard of proving a legal burden is therefore settled as proof beyond reasonable

doubt.99

2.4 Right to Silence

This safeguard proposes that an accused person has the right to remain silent and wait for the

prosecution to establish its case against him/her. The prosecution presents its evidence first and

the defendant has the option of making no case and relying upon the prosecution’s inability to

establish guilt beyond reasonable doubt.100 This right to keep silence is closely associated with

the right against self-incrimination which posits that the accused shall not be compelled to give

96
Supra n.79 at pp 481; also, see Dworkin RM, ‘Principle, Policy, Procedure’ in Colin Tapper (ed.) Crime Proof and
Punishment (1981) at pp 193 where he states that a wrongful conviction is a particularly grave species of moral
harm, one that is significantly worse than a wrongful acquittal.
97
Supra n.79 at pp 448 where Ian Dennis states that provisions referring to the accused “proving” or
“showing” some matter are invariably interpreted as imposing a legal burden on the accused, although it is also the
case that the standard of proof to be reached by the accused is always the lower standard of the balance of
probabilities.
98
In Hepworth [1955] 2 QB 600, Lord Goddard CJ stated:
One would be on safe ground if one said in a criminal case to a jury: ‘you must be satisfied beyond
reasonable doubt’ and one could also say, ‘you the jury must be completely satisfied’ or better still, ‘you
must feel secure of the prisoner’s guilt’. The appeal would be allowed on the ground that the judge’s
direction to the jury that it must be ‘satisfied’ of the accused guilt is inadequate to indicate the standard of
proof required for conviction.
99
In Walters v R [1969] 2 AC 26 (PC), the Privy Council upheld the direction of the trial judge that “a reasonable
doubt is that quality and kind of doubt which, when you are dealing with matters of importance in your own affairs,
you allow to influence you one way or the other.”
100
James J. Tomkovicz and Welsh S. White, Criminal Procedure: Constitutional Constraints Upon Investigation
and Proof (5th ed., 2004)

20
evidence that is adverse to him/her.101 One of the justifications of the privilege against self-

incrimination appeals to the presumption of innocence, the rule that a legal presumption cannot

operate to prove particular facts against the accused in a criminal trial is supported by the right to

be presumed innocent.102

2.5 Presumption of innocence

The presumption of innocence states that a person is presumed to be innocent until proven guilty.

This presumption reflects the moral and political values that are regarded as sufficiently

important in liberal states to elevate the rule about the burden of proof to the status of a

fundamental human right. The values involved are those of the liberty, dignity and privacy of the

individual. An individual’s interest in the maintenance of these values is invaded by a criminal

prosecution, with its associated risk of the adverse publicity and degradation of a trial, the stigma

of conviction and the various forms of punishment. From this standpoint, it is essential that the

state should justify fully, its invasion of the individual’s interest by proof that the individual has

committed an offence, thereby abusing the freedom of action accorded to him/her by the liberal

state.103

The significance of the presumption should not be affected by the seriousness of the crime or

offence in question.104 This was the holding in the case of State v Coetzee,105 where Sachs, J. in

the constitutional court of South Africa stated:

101
Nemo debet prodere se ipsum
102
Supra n.79 at pp 445
103
Supra n.79 at pp 443; Also, Lord Nicholls in the case of Johnstone [2003] 2 Cr. App. R. 493 says that “It is the
duty of the state to justify a derogation from the presumption of innocence and justifying arguments should be
compelling if they are to succeed”
104
ibid
105
[1997] 2 L.R.C 593

21
 There is a paradox at the heart of all criminal procedure in that the more serious the crime, the greater the
public interest in securing convictions of the guilty, the more important do the constitutional protections of
the accused do become. The starting point of any balance enquiry where constitutional rights are concerned
must be that the public interest in ensuring that a particular criminal is brought to book…Hence the
presumption of innocence which serves not only to protect a particular criminal on trial, but to maintain
public confidence in the enduring integrity and security of the legal system. Reference to the prevalence
and severity of a particular crime therefore does not add anything new or special to the balancing exercise.
The perniciousness of the offence is one of the givens, against which the presumption of innocence is pitted
from the beginning, not a new element to be put into the scales as part of the justificatory balancing
exercise. If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape,
corruption…unfortunately the list is almost endless and nothing would be left to the presumption of
innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial of cases.

Arguments in favor of the presumption are two pronged.106 First, a contest between the state and

individual is not a contest of equals; because the state has much greater resources for

investigation and conduct of the case than the individual, it is right that the state should have the

burden of obtaining and presenting convincing evidence of guilt. Secondly, if the burden were

generally on the defendant to prove innocence, the fact-finder will have to convict in any case in

which the fact-finder remained undecided about the facts determining guilt or innocence. This is

thought not to be acceptable in a criminal justice system that attaches a high value to not

convicting the innocent.107

The presumption has led to questions as to whether there should indeed be a shift in the burden

of proof in criminal cases from the prosecution to the defendant.108 This is because it is

considered that a shift in the burden of proof is likely to bring about an occasion of injustice

against the accused person by contravening his rights such as the right to keep silence and the

106
Roberts P., ‘Taking the Burden of Proof Seriously’ (1995) Criminal Law Review 783
107
See supra n.79 at pp 446 where Dennis Ian postulates that the ruling in the case of Woolmington that placed the
burden on the prosecution, with exceptions, was of significance in two ways. First, that it changed the previous law
by rejecting the doctrine of presumption of malice. Secondly, it ought to have acted as a brake on any tendency of
the legislature to reverse the onus of proof by express provision and it ought to have been a weighty factor in judicial
decisions on whether Parliament had impliedly reversed the onus of proof in a statutory offence. This argument is
meant to advance the importance placed upon the right to be presumed innocent.
108
Ian Dennis, supra n.79 at pp 456 states that “on the face of it, a reverse onus is inconsistent with the presumption
and unless the presumption can be qualified…the requirement seems to be that the prosecution is to prove any and
all matters comprising the guilt of the defendant.”

22
right against self-incrimination.109 Lord Bingham in Sheldrake v DPP110 stated that the

justifiability of any infringement of the presumption of innocence cannot be resolved by any rule

of thumb, but on examination of all the facts and circumstances of the particular provision as

applied in the particular case.

Looking at the different kinds of burdens, that is, the legal and evidentiary burdens, it is in order

to state that evidential burden is regarded as compatible with the presumption.111 This is because

unlike legal burden, they do not require the accused to assume the risk of being convicted

because he fails to prove some matter relating to his innocence.112 The important consequence

follows that a court can avoid the incompatibility if it can interpret the legislation so as to impose

only an evidential and not a legal burden upon the defendant.113 The case of Woolmington114

provided for exceptions where the presumption of innocence may be impinged. Among them is

that statutes can impose upon the defendant the burden to prove. This burden is however not

absolute.115

109
See the Right to Silence discussed above.
110
[2005] 1 All ER 237 at pp 21
111
Is has been argued that evidential burden is not a burden of proof strictly speaking, see Colin Tapper, Cross and
Tapper on Evidence (12th ed., 2010) at pp122
112
Ibid
113
This is referred to as the reading down of a statutory provision; see supra n.23 at pp 456-457.
114
Supra n.85 where Lord Sankey states inter alia that “it is for the prosecution to prove its case subject to the
defense of insanity and subject also to any statutory exception”.
115
The Parliament may intend to reverse the onus where it would be difficult to prove guilt, as of matter of
convenience or as a cost saving measure, particularly for regulatory crime, the enforcement of which is in the hands
of an agency with a limited budget, see Ian Dennis, supra n.79 at 468. The courts have held separately on this issue.
In the case of Johnstone, supra n.103, the courts upheld the reverse onus as proportionate on the basis that the facts
were in the knowledge of the defendant and that he had traded in branded goods knowing the risk of counterfeit
goods. In the case of Lambert [2002]2 AC 545, the court held that “the imposition of a legal burden on the defendant
was a disproportionate means of achieving the justified aim of easing the difficult task of the prosecution in proving
the defendants knowledge in this type of case…it required the defendant to prove the lack of knowledge of his
possession of the drug. Knowledge being a form of mens rea”, the court held that it goes to the defendant’s moral
blameworthiness and as such it ought to be proved by the prosecution, despite appearing in the statute in the form of
a defense.

23
2.6 Non-retroactivity of the law

The law cannot apply in the reverse. A person cannot be convicted for an offence that was not a

crime at the time of commission of the act.116

2.7 Sentencing/Punishment

Punishment is meant to act as deterrence, for retribution, incapacitation and rehabilitation.117 The

severity of a sentence or punishment is contributed largely by the seriousness of the offence, that

is, the harmfulness, as well as the need for deterrence. The need for a deterrent penalty is

calculated according to the profitability of the offence, the ease of committing the offence, the

pleasure or satisfaction involved the difficulty of detection, the frequency of the offence in the

area and the degree of organization.118 The Constitution provides a safeguard in that where there

is a change in law, the convicted person should get the benefit of the lighter sentence of between

the two.119 The provision for punishment can be said to be related to the non-retroactivity of the

law. In conclusion, as has already been stated, the purposes of these constitutional guarantees of

the criminal procedure that this paper has considered can be summarized in six words; the right

116
See for instance the case of Hissein Habre v Republic of Senegal ECW/CCJ/JUD06/10 at
http://www.hrw.org/fr/news/2010/11/18/arr-t-cedeaoecowas-ruling-hissein-habr-cr-publique-du-sn-gal at 10 January
2012. The court held that:
Senegal cannot use its domestic courts to try Hissène Habré for allegedly committing, from 1982 to 1990,
torture and crimes against humanity in Chad. According to the Court, the legislative changes adopted in
2007 by Senegal, incorporating international crimes into its Penal Code and providing for extraterritorial
jurisdiction of Senegalese courts over international crimes, would violate the principle of non-retroactivity
of criminal law if applied to prosecute crimes allegedly committed by Habré almost 20 years before.
This rule/principle is reproduced in article 50 (2) (n) of our Constitution.
117
Clarkson CMV, Understanding Criminal Law (4th ed., 2005)
118
Brian Slattery, A Handbook on Sentencing; With Particular Reference to Tanzania (1972)
119
See for instance article 50 (2) (p) of the Constitution 2010 that every accused person has a right to a fair trial that
includes the right to the benefit of the least severe of the prescribed punishment for an offence, if the prescribed
punishment for the offence has been changed between the time that the offence was committed and the time of
sentencing.

24
to a fair trial. These are not all the rights that are protected by the Constitution, but they suffice

for the purposes of this study.120

120
The Constitution envisages other rights that are to be protected under article 50. Also, The Evidence Act (cap 80)
under Chapter IV Part I provides for Burden of proof and matters appertaining to the same. This will be considered
later in the paper.

25
 CHAPTER THREE

3. Responses to white collar crime

White collar crime was first defined as the crime committed by people of respectability and high

social status in the course of their employment.121 The Goldenberg scandal was one such type of

crime by virtue of the meaning given to this concept of crime. Is it then true to say that the legal

regime in Kenya has been silent with regard to the concept of white collar crime? This statement

is true to some extent. The law then only focused on corruption as the major aspect of white

collar crime, thus ignoring other aspects of the crime.122 Despite the fact of there being

provisions with regard to corruption, there were many obstacles encountered in trying to curb

this vice, that is corruption.123 These obstacles and the shortfall of the law then led to the

occurrence of Goldenberg scandal and these shortfalls prompted the legislation to try and enact

laws that may seek to address the weaknesses of the law.124

3.1 Shortfalls of the Previous Laws on White Collar Crime

The primary law on white collar crime before 2003 was the Prevention of Corruption Act125 with

other provisions being found in other statutes.126 By looking at their short falls, we will see the

121
Supra n.19 this definition, as has already been discussed, has undergone a lot of transmutation, see Chapter One
of this paper.
122
See below n.128
123
See James Gathii, Defining the Relationship Between Corruption and Human Rights, at
http://ssrn.com/abstract=1342649 as at 10 January 2012 at pp 29 stating:
There is a truism about this in Kenya. Corruption thrived in Kenya especially in the 1980’s following the
systematic dismantling of the rule of law and tenets of good governance in the one party era. In the 1990’s
corruption thrived as significant economic reforms were implemented in the absence of legal restrains
against corruption…in addition, when civil society groups began exposing corruption through
documentation, President Daniel Arap Moi extended repression to such groups. As such, in 1995, the Moi
government banned a Non-Governmental Organization, the Center for Law and Research International
(Clarion), which published an early report on corruption in Kenya.
124
See for example the recommendations of the Judicial Commission of Inquiry into the Goldenberg Affair e.g. at
para 843 proposed the enactment of an anti-money laundering legislation.
125
Cap 65 (now repealed)

26
importance of passing of new regulations and how they seek to address the weaknesses of the

law as it was then.

3.1.1. The Prevention of Corruption Act127

The first short fall that has been cited is with regard to the definition of corruption.128 By

defining corruption alone, the Act disregarded other crimes that may be deemed to fall under the

purview of white collar crime such as abuse of trust, fraud among others.129 This is because the

definition implies a form of collusion between the giver and the receiver, which is not

necessarily the case in all white collar crimes.130 It had been proposed that such a simplistic

definition could not encompass the entire concept of what is white collar crime.131 Related to this

shortfall is the concern that the act did not foresee such instances for example where a junior

official was coerced to take or do certain acts or where there was no pecuniary benefit accruing

to a perpetrator.132Another definition issues that were propounded included the definition of a

‘gift’.133

126
Though not provided for expressly, one may infer from these statutes provisions relating to white collar crime.
The statutes include the Penal Code (cap 63), the Restrictive Trade Practices, Monopolies and Price Control Act
(cap 504), the Evidence Act (cap 80) and the Criminal Procedure Code (cap 75), just to mention but a few.
127
Supra n.125
128
See s.3 (1) provided that any person who shall by himself, or by or in conjunction with any other person,
corruptly solicit or receive, agree to receive, for himself or for any other person, any gift, loan, fee, reward,
consideration or advantage whatever, as an inducement to, or reward for, or otherwise on account of any member,
officer or servant of a public body doing, or forbearing to do, or having done or forborne to do, anything in respect
of any matter or transaction whatsoever, actual or proposed or likely to take place in which the public body is
concerned shall be guilty of a felony. S.3 (2) then defines corruption in office by reference to the one who seeks to
receive such as provided for in s.3 (1) while s.3 (2A) provided for the intention of the crime of corruption in office.
129
For instance, Hebert Edelhertz, The Nature, Impact and Prosecution of White-Collar Crime (1970) lists four
typologies of white collar crimes. The limited definition offered by this Act therefore locked out other forms of
white collar crime and this may have been one of the reasons for Goldenberg.
130
Stuart P. Greene, supra n.22
131
Supra n.123
132
ibid
133
See Gathii James, Kenya’s Long Anti-Corruption Agenda-1952-2010: Prospects and Challenges of the Ethics
and Anti-Corruption Commission Under the 2010 Constitution at http://ssrn.com/abstract=1718620 as at 10 January
2012 at pp 9 for further discussion on the same.

27
The second shortfall of the Act was to do with the technicality that was being experienced in

prosecution of corrupt acts.134 The agency responsible for dealing with white collar crime (then

only corruption matters), did not have the requisite tools to fight the vice.135 The lack of

prosecutorial powers meant that the agency had to rely on the Attorney General for prosecution

and it would have suffered a setback should the AG have refused to prosecute.136 The situation

was not to be remedied because the agency was later declared to be unconstitutional.137 Related

to this difficulty in prosecution was the concept of corroboration which was required as a matter

of practice before conviction on a charge under the Act.138 The third shortfall that can be cited

was the severity of the punishment for corruption offences.139 The sentences were considered not

a deterrent enough to stop white collar crimes (corruption).140 The Parliament while passing the

Act was of the opinion that there was no need to pass draconian sentences.141

3.1.2. Other laws

The Penal Code142 provided for an aspect of white collar crime under s 101.143 This is termed as

abuse of office. However it is important to note that white collar crime does not only involve

134
See s.12, provided for the consent of the Attorney General –a prosecution for an offence under this Act shall not
be instituted except with the written consent of the Attorney General.
135
Ibid. see also Gathii James, supra n.133 where in pp 17 he states “The resources given to the KACA were
minimal and as such it was impeded from successfully investigating and prosecuting cases of corruption.”
136
S.26 of the former Constitution gave the AG powers to inter alia institute criminal proceedings. Gathii James at
supra n.133 states in pp4 that inter alia, “the country had an Attorney General unwilling to prosecute high level
corruption suspects.” An example has been given by John K. Tuta, supra n. 133 at pp12, where he states that the
Attorney General refused to prosecute senior corrupt officials because the KACA had not obtained his consent.
137
See Gachiengo v Republic, supra n.38. The court had held that KACA was a corporate entity and not an agency
complementary to the Attorney General and as such it could not unilaterally investigate and prosecute cases.
138
See Dusara and Another v Republic (1989) KLR 340 wherein the court stated that corroboration was a desirable
and should be sought of the complainant’s evidence in corruption cases but the necessity for corroboration did not
have effect as a rule of law.
139
S.3 (3) put the jail term between five to ten years where the consideration was more than ten thousand shillings
and between one to five years where the consideration did not exceed ten thousand shillings. It further lists
punishments such as forfeiture and being barred from election or appointment to public office.
140
Supra n.133
141
James Gathii, supra n.123
142
Cap 63

28
abuse of office.144 The Restrictive Trade Practices, Monopolies and Price Control Act145 dealt

with, as the name suggests issues to do with restrictive trade practices, monopolies and price

controls and what amounted to an impingement of the law regarding the aforementioned and

hence were crimes.

Without need to go to other statutes and as can be seen from the foregoing, there was no law that

rightly addressed the problem of white collar crime as a concept of crime on its own. In fact, no

law defined the term. The law was therefore limited to corruption, only one among the many

forms of white collar crimes that could be perpetrated.146 This gap can be said to have led to the

occurrence of the Goldenberg scandal. There was therefore a need to come up with a legislation

that would seek to address these shortcomings. This is also true since the Gachiengo case147 left

a void in the country’s fight against corruption activities.148

3.2. The Law after Goldenberg Affair

After the Goldenberg scam which exposed the frailty of the law on white collar crime, several

statutes were enacted to try and reign in shoddy deals and dealers and try and prevent a re-

occurrence of Goldenberg. This paper will now delve into a discussion of particular sections of

these statutes that may be thought to raise constitutional issues with regard to the safeguards laid

143
Provides that any person who, being employed in the public service, does or directs to be done in abuse of the
authority of his office, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanor and if the act
is done or directed to be done for the purposes of gain, he is guilty of a felony and is liable for an imprisonment for
three years.
144
See Chapter One of this paper. According to Mark Moore, he identified about seven categories of white collar
crime including stings and swindles, chiseling, individual exploitation of institutional position (abuse of office),
embezzlement and employee fraud, client frauds, influence peddling and bribery and willful non-compliance with
regulatory rules. This is not to say that his list is exhaustive, see Stuart P. Greene, supra n.22
145
Cap 504
146
Other white collar crimes that have been identified include embezzlement, bribery, chiseling etc., see supra n.144
147
Supra n.38
148
See James Gathii, supra n.133 where he states at pp 35 that the Anti-Corruption and Economic Crimes Act
(hereinafter “ACECA”) filled the hole left by the KACA’s demise following the Kenya Constitutional Court’s
Gachiengo decision.

29
down with respect to criminal trials. The laws that have been passed since the occurrence of the

Goldenberg scandal include the Anti-Corruption and Economic Crimes Act,149 (herein the

ACECA) the Public Officers Ethics Act,150 (herein the POEA) the Constitution 2010 and the

Ethics and Anti-Corruption Commission Act (herein the EACCA).151 Another legislation that has

been passed but will not be considered in this paper is the Proceeds of Crime and Anti-Money

Laundering Act.152

3.2.1. The Public Officers Ethics Act

Its preamble states that it is an Act of Parliament to advance the ethics and of public officers by

providing for a code of conduct and ethics for public officers and requiring financial declarations

from certain public officers and to provide for connected purposes. It adopts two approaches to

this. The first is that it defines codes of conduct and ethics that ought to be followed by all public

servants153 and secondly, provides a framework through which public servants can declare their

income and liabilities for accountability purposes.154

The Act can therefore be said to have been enacted to try and regulate the conduct of public

officers. This was part of the broad anti-corruption strategy the NARC government wanted to

instill after President Kibaki came into power. Up until this point, anti-corruption legislation had

taken the form of merely defining corrupt behavior and determining how severely to punish each

type of behavior it defines as corrupt.155

149
Act no.5 of 2003
150
Act no.4 of 2003
151
Act no.22 of 2011
152
Act no.9 of 2009
153
Part II (specific code of conduct and ethics) and III (general code of conduct and ethics)
154
Part IV (declaration of income, assets and liabilities)
155
See James Gathii, supra n.133 at pp 42. He further states at pp 43 that “This is where the Public Officer Ethics
Act, 2003 comes into play. By promoting professionalism and integrity in the public service through a code of

30
3.2.2. The Ethics and Anti-Corruption Commission Act

Its preamble states that it is an Act of Parliament to establish the Ethics and Anti-Corruption

Commission pursuant to Article 79 of the Constitution, to provide for the functions and powers

of the Commission, to provide for the qualifications and procedures for the appointment of the

chairperson and members of the Commission, and for connected purposes. The Act will be

discussed comprehensively in the next chapter.

3.2.3. The Constitution

The Constitution was promulgated in August of 2010. Of particular concern or interest for this

paper is Chapter Six, titled Leadership and Integrity. This chapter, among other things, sets out

the responsibilities of leaders,156 oath of office of state officers,157 conduct of state officers, their

conduct,158 financial probity,159 restriction on their activities,160 and establishes the Ethics and

Anti-Corruption Commission.161 These will also be discussed in the next chapter.

3.2.4. The Anti-Corruption and Economic Crimes Act

Its objective, according to the preamble, is to provide for the prevention, investigation and

punishment of corruption, economic crime and related offences and for matters incidental thereto

and connected therewith. Even from the preamble, it can be seen that the Act sought to overcome

the weaknesses of the previous legislation by expanding the scope of white collar crime so that it

is not only concerned with corruption but also economic crime. Corruption is defined as meaning

conduct and model standards rather than by threat of punishment, the Public Officer Ethics Act was implemented to
help curb corruption in a different way.”
156
Article 73
157
Article 74
158
Article 75
159
Article 76
160
Article 77
161
Article 79

31
an offence under any of the provisions of sections 39 to 44, 46 and 47,162 bribery, fraud,

embezzlement or misappropriation of public funds, abuse of office, breach of trust or an offence

involving dishonesty either in connection with any tax, rate or impost levied under any Act or

under any written law relating to the elections of persons to public office.163Economic crime on

the other hand is defined as an offence under section 45164 or an offence involving dishonesty

under any written law providing for the maintenance or protection of public revenue.165 These

definitions are a departure from what was previously defined as white collar crime (that is,

corruption).166 The definitions are wider and encompass many of white collar crimes. This is a

positive step towards the fight against white collar crime in Kenya.

Part II provides for the establishment of special magistrates set up by the Judicial Service

Commission to try any offence punishable under the Act and any conspiracy to commit or any

attempt to commit or any abatement of any of the offences under the Act. The Act further

provides that the special magistrates shall have the sole jurisdiction to hear and determine all the

criminal cases under the Act.167 They may offer pardon in exchange for full disclosure by an

accused person of the acts of accomplices.168

Part III169 of the Act established the Kenya Anti-Corruption Commission and the Kenya Anti-

Corruption Advisory Board. We shall discuss this later in the paper since the Commission was

162
The sections in brief are concerned with the following: s 39 (bribing agents), s 40 (secret inducements for
advice), s 41 (deceiving principal), s 42 (conflict of interest), s 43 (improper benefits to trustees for appointments), s
44 (bid rigging), s 46 (abuse of office) and s 47 (dealing with suspect property).
163
See s 2.
164
Concerned with protection of public property and revenue.
165
Supra n.163.
166
See supra n.128.
167
S 4.
168
S 5.
169
Repealed by s 37 of the Ethics and Anti-Corruption Commission Act, Act no.22 of 2011.

32
replaced by the Ethics and Anti-Corruption Commission.170 Section 48 provides for the penalty

for the offences under the Act. It provides that a person found guilty shall be liable to a fine not

exceeding one million shillings or to an imprisonment of a term not exceeding 10 years or to

both.171 In addition the person shall be liable to a mandatory fine if the person received a

quantifiable benefit or another person suffered a quantifiable loss.172 This mandatory fine shall

be either, twice the sum of the amount of benefit or the loss, and where there was both a benefit

and a loss, twice the sum of the benefit and the amount of loss.173

Section 50 provides that in prosecution of an offence under the Act that involves a benefit that is

an inducement or reward for doing an act or making an omission, it shall not be a defense that

the act or omission was not within a person’s power or that the person did not intend to do the act

or make the omission or that the act or omission did not occur. The Act further provides for

forfeiture of unexplained assets.174 Of particular interest is s 55 (1)175 and 55 (5).176 These

provisions can be said to impute presumption of corruption. The presumption of corruption is

also provided for where the Act provides that if a person is accused of an offence under Part V an

element of which is that an act was done corruptly and the accused person is proved to have done

that act the person shall be presumed to have done that act corruptly unless the contrary is

proved.177 Finally, the Act requires that a person charged with corruption or economic crime shall

be suspended at half pay, with effect from the date of the charge.178 These are the sections this

170
Ibid.
171
S 48 (1) (a).
172
S 48 (1) (b).
173
S 48 (2).
174
S 55.
175
Defines corrupt conduct.
176
Requires the accused to prove that the unexplained assets in his possession were not acquired corruptly.
177
S 58.
178
S 62 (1).

33
paper shall be devoted to discussing with a view of determining the extent to which they impinge

on the constitutionally laid down safeguards in criminal trials.

3.3. Implications of the ACECA Provisions on the Constitutional Safeguards in Criminal

Trials

In determining the ramifications of the provisions of ACECA on the constitutionally laid down

safeguards of criminal trials, this paper seeks to indulge itself in matters of interpretation of the

statute. Interpretation is not something that happens only in case of doubt or difficulty, it happens

whenever anyone tries to understand language used by another person.179The first rule for

engaging in interpretation is a simple one; start with the words of the statute.180 The words used

must be given their normal grammatical meaning in context.181 It therefore follows that the first

approach to interpretation that is usually applied is the literal approach.182 In the event that this

mode of interpretation may lead to a manifest absurdity or injustice, then one can turn to other

rules which include the golden rule183 and the mischief rule also called purposive approach.184

Since these approaches are not cast in iron, the approach that is used in the first instance in this

paper will be the literal approach to interpretation.

179
Michael Zander, The Law-Making Process (4th ed. 1994). He states at pp 108 that this so because people who
view the same text from different perspectives are apt to find different meanings in the language used.
180
Carl F. Stychin and Linda Mulcahy, Legal Methods and Systems; Texts and Materials (3rd ed. 2007) at pp 99.
181
John Wheeler, Essentials of the English Legal System (2nd ed. 2006) at pp.134.
182
Lord Millet, Statute Law Review 1999 as quoted in John Wheeler, ibid, “the language of the statute is sometimes
just too plain to give any room for maneuver.”
183
Attributed to Lord Wensleydale by Lord Blackburn in River Wear Commissioners v Adamson (1877) 2 App.Cas
743.
184
Can be traced to Heydon’s case (1584) 3 Co. Rep 7a. This approach gives the words in the statute meaning in
accordance with what the Parliament sought to address by passing the legislation.

34
3.3.1. Special Magistrates vis a vis the Right to be Heard by a Court Established under the

Constitution

Part II of the Act provides for the appointment of special magistrates by the Judicial Service

Commission (herein JSC).185 The jurisdiction of any offence is left solely to the special

magistrates.186 The special magistrates also have the power to offer pardon to any person who

being or having information regarding an offence under the ACECA volunteers the

information.187

One of the principles of a fair trial that is a constitutionally laid down safeguard in criminal

proceedings is the provision that the accused has a right to a public trial before a court

established under the Constitution.188 The first question then is whether the special magistrates

are a court recognized by the Constitution. The second question will be whether the special

magistrates oust the jurisdiction of the High Court, which if they do, is unconstitutional and may

therefore render such courts established by the JSC to be null and void ab initio.189 The third

concern is with regard to the power conferred upon these magistrates with regard to the

pardoning of offenders,190 is it an abrogation of the prerogative of mercy as envisioned in the

Constitution?191 The determination of these issues will determine whether or not these special

185
S 3.
186
S 4.
187
S 5 (1).
188
Article 50 (2) (d). this should be read together with article 159 (1) which provides that judicial authority is derived
from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this
Constitution.
189
Consider article 165 (3) (a) that the High Court shall have unlimited original jurisdiction in criminal and civil
matters.
190
S 5 (1) A special Magistrate may, with a view to obtaining the evidence of any person supposed to have been
directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making
a full and true disclosure of the whole circumstance within his knowledge relating to the offence and to every other
person concerned, whether as principal or abettor, in the commission thereof and any pardon so tendered shall be a
pardon for purposes of section 77(6) of the Constitution (this is the former Constitution).
191
Article 133, the power of mercy.

35
magistrates are working within or without the ambit of the Constitution, which will then

determine their constitutionality and hence determine the question of whether they afford a

suspect the right to a fair trial.

3.3.2. Determination of whether ‘the Special Magistrate Courts’ are Courts Established as

under the Constitution

On the question of recognition of the special magistrates as a court by the Constitution 2010, we

first turn to article 169 of the Constitution. It provides that subordinate courts include, among

others, ‘any other court or local tribunal as may be established by an Act of Parliament, other

than the courts established as required by Article 162 (2).’192 By virtue of the name ‘special

magistrates’ it implies that these shall be in a subordinate court.193 Then does it follow that

Article 169 is applicable to such magistrates? Are the courts they preside over a court unto

themselves and established by law? Are the magistrates constitutionally appointed?

The case of Meme v Republic and Another194 addresses many issues concerning the

constitutionality of several provisions of the ACECA. The case is therefore going to be a major

reference in this paper. To start with is the issue of the constitutionality of the special

magistrates. The court in Meme stated that the special magistrates were not a new breed of

192
See s 169 (1) (d); s162 provides for the establishment of the courts with the status of the High Court.
193
This is because with reference to the Magistrates Courts Act (cap 10), magistrates preside over subordinate courts
194
Misc.Criminal Application No. 495 of 2003. The complainant lodged a constitutional case in the High court
praying that the court may determine firstly, that the Anti-Corruption Court had no constitutional authority to try the
Applicant. Secondly, that the magistrate had no legal authority to conduct the case. Thirdly, that a trial as intended
would deny the applicant his constitutional right to be presumed innocent until proved guilty. Fourthly, that trial of
the applicant as proposed would not be trial before an impartial Court, and the principles of natural justice would not
be observed. Fifthly, that the prosecutor at the Anti-Corruption Court lacks lawful authority to conduct the
prosecution. Sixthly, that the Anti-Corruption and Economic Crimes Act (Act No 3 of 2003) is unconstitutional.
Seventhly, that thanks to the enactment of the Anti-Corruption and Economic Crimes Act (Act No 3 of 2003) which
is alleged to be unconstitutional, the Penal Code offence in respect of which the applicant had been charged, is
impliedly repealed and therefore the charges should be terminated. Eighthly, that the intended criminal trial is an
abuse of the process of the Court and should be terminated.

36
magistrates195 but were magistrates appointed by power given to the JSC under the

Constitution,196 and that they did not form a unique court as unto themselves but were to preside

over Anti-Corruption courts which had been instituted earlier by the Chief Justice to preside over

corruption cases and these courts are not unconstitutional.197 The Constitution2010 also provides

for the appointment of magistrates by the JSC.198 This when read together with the relevant

section of the ACECA,199 just as the court in the case of Meme held, makes the special

magistrates to be magistrates properly so called and therefore competent to hear any matter

brought before them in relation to the ACECA. This is because the Constitution 2010 does not

change anything with regard to the appointment of magistrates by the JSC as was provided for in

the previous dispensation.200

Having established that the recognition of these special magistrates is not contradictory to the

Constitution 2010, it follows that Article 169 (1) (d) applies to these special magistrates and the

courts they preside over.201 It can therefore be concluded that these magistrates are appointed in

accordance with the Constitution 2010.

195
See the judgment at pp 691 where the Court stated:
On whether the trial magistrate in Anti-Corruption Court Case No. 22 of 2003 is a magistrate known to
law, and whether the magistrate can try the matter in the context of Act No.3 of 2003, we hold that the trial
magistrate lawfully holds appointment made by virtue of the powers provided for in section 69 of the
Constitution; the magistrate properly holds her position under the Constitution and the law, and is fully
competent to try Anti-Corruption Case No. 22 of 2003.
It should be borne in mind that this decision of the Court was under the previous constitutional dispensation.
196
Currently provided for under Article 172 (1) (c) of the Constitution2010. In the previous constitutional
dispensation, this was posited in s 69.
197
See pp. 691 court stated:
whether it is consistent with the Constitution of Kenya, we hold that the term “Anti-Corruption Court” is
only a label, to describe a division in the Magistrates’ Court system lawfully established by the Chief
Justice, by virtue of powers conferred upon him by the Magistrates’ Courts Act (cap 10), section 13(2).
There is entirely no inconsistently between the set-up of the Anti-Corruption Court and the provisions of
the Constitution (the independence Constitution).
198
supra n.196
199
S3
200
Compare article 172 (1) (c) of the Constitution 2010 and s 69 of the independence Constitution.
201
That is, the Anti-Corruption Court.

37
3.3.3. Jurisdiction of the Special Magistrates

It has already been established that the special magistrates preside over subordinate courts. The

Constitution provides that Parliament shall enact legislation conferring jurisdiction, functions

and powers of subordinate courts.202 Parliament in exercising this mandate established the class

of special magistrates and conferred upon them the sole jurisdiction to hear and determine

offences committed under the ACECA.203 The CPC also provides that the JSC has power to

extend jurisdiction of subordinate courts.204

Does the provision that they have sole jurisdiction augur well with the constitutional powers of

the High Court?205 The case of Meme did not address this matter as it did not fall under what it

was required to determine.206 The Constitution 2010, provides that the only instance when the

High Court shall not have jurisdiction is where a matter falls under the jurisdiction of the

Supreme Court and where jurisdiction has been given to courts with the status of the High Court

as established under Article 162 (2).207 The court in the Meme case, held that the term “Anti-

Corruption Court” is only a label to describe a division in the Magistrates’ Court system lawfully

established by the Chief Justice, by virtue of powers conferred upon him by the Magistrates’

Courts Act (cap 10), section 13(2). As such, it can be inferred that the special magistrates courts,

or the Anti-Corruption Court is not a court as per Article 162 (2)208 and the jurisdiction of the

High Court cannot therefore be ousted. This specific section209 seeks to oust the jurisdiction of

202
This was provided for under s 65 (1) of the previous Constitution. It is provided for under Article 169 (2) of the
Constitution 2010.
203
Refer to s 4 (1)
204
S8
205
High Court has unlimited original jurisdiction in both civil and criminal cases, Article 165 (3) (a)
206
See supra n.194 for the facts that were to be determined.
207
See Article 165 (5) (a) and (b)
208
Court with the status of the High Court
209
That is, s 4

38
the High Court. This when read together with Article 2210 of the Constitution 2010 therefore

renders this particular provision null and void to the extent that it is inconsistent with the

Constitution 2010.211

3.3.4. Powers of Pardon of the Special Magistrates

The third question to be determined is whether the powers of the special magistrates to offer

pardon212 contravenes the provision for prerogative of mercy as enshrined in the Constitution

2010.213 The court in the decision of Meme held that this was not so as “it is quite plain to us that

no conflict exists between the provisions of section 5(1) of Act No 3 of 2003, which section is

concerned to achieve efficiency in the process of taking evidence in relation to charges of

corruption, and section 27 of the Constitution (the independence Constitution) which relates to

the President’s dispensation of mercy for persons already bearing the brunt of punishment meted

out by the Courts”.214 The special magistrates do thus act within the purview of the Constitution

2010 in granting pardon so as to facilitate the prosecution of white collar crimes as they offer

pardon to persons who have not yet been sentenced as opposed to the President’s prerogative of

mercy which is directed to persons who have already been sentenced.215

210
Supremacy of the Constitution clause.
211
It should however be noted that this decision was made under the previous constitutional dispensation. Be that as
it is, the independence Constitution also provided that the High Court shall have unlimited original jurisdiction in
civil and criminal matters, see s 60. This therefore has the implication that even in the previous constitutional
dispensation, this section seeking to oust the jurisdiction of the court was void to the extent of its inconsistency.
212
S 5 ACECA
213
Article 133 provides that the President shall exercise the prerogative of mercy in accordance with the advice of
the Advisory Committee.
214
Supra n.194 at pp.665
215
This is because, with reference to the President’s power of mercy, the independence Constitution and the
Constitution 2010 both provide for it and the exercise of the power of pardon by the special magistrates does not
contravene them because of the reason given by the Court in the Meme case.

39
3.3.5. Presumption of Innocence and the Shift in Burden of Proof vis a vis Presumption of

Corruption

In a criminal trial, the burden of proof is on the prosecution to prove its case beyond reasonable

doubt.216 This is because of the presumption of the innocence that is accorded to the accused

person.217 The law does not require a person to prove his innocence or produce any evidence at

all and the Government or prosecution has the burden of proving a person guilty beyond a

reasonable doubt, and if it fails to do so the person is (so far as the law is concerned) not

guilty.218 Since the accused is presumed innocent by the law, it is upon the prosecution to prove

its case, the standard being beyond reasonable doubt.219 It is therefore a traditional requirement

in criminal trials for the prosecution to prove its case beyond reasonable doubt.220 This

presumption of innocence is so important in a criminal trial that it is entrenched in most

Constitutions and even international instruments.221

Several provisions of the ACECA can be read, on face value, to imply a departure from the

presumption of innocence requirement and a shift of burden of proof from the prosecution to the

accused person.222 Any departure from this has been held to be unconstitutional.223 This begs the

216
Refer to chapter two of this paper for in-depth discussion on the same. Specifically Lord Sankey’s statement in
Woolmington v DPP [1935] AC 462, supra n.86
217
It has been said that this affords the accused the right to silence, that is, to remain silent and wait for the
prosecution to establish its case. Refer to Chapter Two of this paper.
218
The Lectric Law Library at <http://www.lectlaw.com/def/i047.htm> as visited on 26 January 2012. This
supposition is in line with s 107 of the Evidence Act (cap 80) which provides that whoever desires any court to give
judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those
facts exist and that when a person is bound to prove the existence of any fact it is said that the burden of proof lies
on that person.
219
See Tipmra, Presumption of innocence, at <http://tipmra.com/new_tipmra/presumption_of_innocence.htm> as
visited on 26 January 2012 stating:
Since you own the presumption you have nothing to prove. The court recognizes the fact that the
presumption is yours. With the presumption is innocence you do not have to prove innocence as it is a
given. The Burden of proving otherwise is upon the party making the assertion.
220
See Woolmington, supra n.86
221
It is provided for under article 50 (2) (a) of the Constitution of Kenya 2010.
222
See s 55 (5), 58, 62 outlined above.

40
question of whether, if at all, there are circumstances when the presumption of innocence can be

done away with and the burden of proof placed on the accused and why these circumstances

exist.224 From the start, it is important to note that the only burden that is recognized to shift to

the accused is the evidentiary burden and not the legal burden.225 The next question to be

determined is then whether these provisions of the ACECA require the proof of a legal burden or

an evidentiary burden.

We first turn to section 58 of the ACECA for analysis of the presumption of innocence and

requirement of the burden of proof. It presumes corrupt intent by stating that if a person is

accused of an offence under Part V an element of which is that an act was done corruptly and the

accused person is proved to have done that act, the person shall be presumed to have done that

act corruptly unless the contrary is proved. Using an illustration, if x, being a public officer, is

accused of receiving a bribe, receives a gift from y in the course of his official duty, then the

burden will be upon him to prove that the gift was not received corruptly. This section requires

that the accused be made to prove that his act was not done corruptly, implying an issue of

proving the status of the mind at the time of the commission of the act.226 Proving an issue of the

state of mind is a legal burden that the prosecution is required to dispense with, and not to be

placed upon the accused.227

223
See Proof Beyond a Reasonable Doubt, Chapter Two of this paper.
224
See Chapter Two, Burden of Proof, for instances when a burden of proof may shift from the prosecution to the
accused.
225
Supra n.79
226
Men srea is the proving of a guilty mind which includes knowledge, negligence, intention etc.
227
The accused is required to prove issues of defense, such as insanity but the onus of proving the guilty mind of the
accused is on the prosecution. See Chapter Two; also International Anti-Corruption Conference at
<http://8iacc.org/papers/despville.html> as at 26 January 2012 stating:
But it is important to realize that the so-called reversal is only in the sense that the issue to be proved by the
defendant is one that has been raised by the defendant himself. Reversal does NOT mean (at least not in
any modern legal system) that the defendant is ever required to prove the contrary of an assertion made by
the prosecution. It is an essential element of a fair trial that he who asserts must prove. The onus of proof is

41
The Evidence Act228 provides that the burden of proof lies on that person who would fail in the

event that no evidence is adduced by either side.229 If therefore x is charged with the offence of

receiving a bribe, in the event that no evidence is adduced, the prosecution will fail in its

assertion. The Act230 further provides that the burden of proof as to any particular fact lies on the

person who wishes the court to believe in its existence, unless it is provided by any law that the

proof of that fact shall lie on any particular person.231 This section again places the burden on the

prosecutor who wishes to bring a case against the accused. The exception desires the proof of a

fact, an evidentiary burden and not a legal burden. Section 58 is therefore a manifest departure

from the right to be presumed innocent until proven guilty. It is what has come to be known as

presumption of guilt.232

Secondly, section 62 (1) deals with the suspension of a person charged with an offence under the

Act. The section can be said to punish the suspect for a crime that has not yet been proved. It can

be said to be a presumption of guilt because the accused starts to suffer the punishment of law

before being actually convicted. Compare this to other crimes where one may be charged with an

offence but still continue to hold office.233

said to lie on the party which makes the assertion. It would be unfair to require a party to disprove a mere
assertion made by the other.
It states further that “the question here is not so much whether having to contradict an assertion by the other party is
inconsistent with human rights norms - such a reversal is in obvious breach of a fundamental precept of every
modern legal…”
228
Cap 80
229
S 108
230
Supra n.228
231
S 109
232
Bruce P. Smith, The Presumption of Guilt and the English Law on Theft, at
http://www.historycooperative.org/journals/lhr/23.1/smith as at 26 January 2012
233
For instance, the persons who were charged with crimes against humanity at The Hague continue to hold their
ministerial positions. See for example Steve Mkawale, ‘The ICC Confirms Charges’, The Standard 25 January 2012
at pp. 8. It was not until they faced pressure from public that they decided to resign from the positions they were
holding. This is because there is no law requiring them to vacate office but one may also argue that vide the
Constitution, specifically Chapter Six thereof, they are required not to hold a public office and should vacate, yet
they remained.

42
Thirdly, section 55 (5) provides that if after the Commission234 has adduced evidence that the

person has unexplained assets the court is satisfied, on the balance of probabilities and in light of

the evidence so adduced, that the person concerned does have unexplained assets, it may require

the person, by such testimony and other evidence as the court deems sufficient, to satisfy the

court that the assets were acquired otherwise than as a result of corrupt conduct. This section

read literally shifts the burden of proof to the accused. However, the burden is an evidentiary one

and not a legal one.235 This is thus not against the procedure in criminal trials.236

3.3.6. Retroactivity of the Law

Retroactivity has been defined as referring to a court's decision or a statute enacted by a

legislative body, which would result in an application to past transactions and legal actions.237

Non-retroactivity therefore means a court decision or statute that does not apply ‘from the past’.

The law provides that a person shall not be punished for a crime that did not at the time of

commission or omission constitute a crime.238 As was already advanced above, the principle of

non-retroactivity of the law is premised upon the two doctrines of nullum crème sine lege (a

crime is not a crime until it has been criminalized by the law) and nullum poena sine lege (there

is no punishment for what has not been made a crime by law). Section 55 (1) defines corrupt

conduct by stating that it is a conduct that constitutes corrupt conduct and economic crime

(referring us back to section 2 which defines the two terms) or conduct that took place before this

234
Now the Independent Ethics and Ant-Corruption Commission, see Act no.22 of 2011
235
See Chapter Two of this paper on burden of proof.
236
Parliament may enact legislation seeking to place upon an accused an evidentiary burden since he may be the
person in the best position to explain the circumstances, see supra n.228; also, see supra n.215 “…it is highly
unlikely that casting the evidential burden on a defendant to show lawful authority or reasonable excuse when
charged with an offence of this kind would be inconsistent with his right to a fair trial and his right to be presumed
innocent... The excuse would be exclusively within the knowledge of the accused and it would therefore not be
unreasonable to expect him to bear at least the evidential burden.”
237
The Legal Dictionary at http://legal-dictionary.thefreedictionary.com/retroactivity as at 26 January 2012
238
See Article 50 (2) (n) of the Constitution 2010.

43
Act came into force and at that time constituted an offence and if it had taken place after the Act

came into operation would have constituted corrupt conduct or economic crime (emphasis

added).

Using the literal interpretation approach, the second limb of the definition of what constitutes a

corrupt conduct that is, conduct that took place before this Act came into operation and at that

time would have constituted an offence and if it had taken place after the Act came into operation

would have constituted corrupt conduct or economic crime,239 can be said to be retroactive. This

is because it includes both the acts that were corrupt before the passing of the ACECA and the

acts that would have been termed as corrupt had the Act had been passed then.240 Retroactivity of

the law is against the principle of a fair trial as envisaged in criminal trials and enshrined in the

Constitution 2010.241

3.3.7. Sentencing/Punishment for crime

The rule in law is summarized in the phrase nullum poena sine lege, meaning that one may not

be punished for what is has not been made an offence in law. This rule is closely associated with

the principle of non-retroactivity of the law.242 It therefore follows that one cannot be punished

for what was not a crime at the time of the commission of an act that has been made an offence

by passing of law.243 Also, in the event of a change in the punishment of an offence between the

time of commission of the offence and sentencing, the accused has the right to the benefit of the

239
S 55 (1) (b)
240
Consider s 2 that expands what is considered as corrupt conduct and an economic crime and compare with the
former statute on corruption.
241
Article 50 (2) (n)
242
Kenneth S. Gallant, Legality as a Rule of Customary International Law: Non-Retroactivity of crimes and
Punishments-Research Through 2010 at http://ssrn.com/sol3/papers.cfm?abstrAct_id=1864930 as at 26 January
2012
243
ibid

44
least severe of the prescribed punishment.244 This therefore means that the offences that were

committed before the ACECA came into force are not to be punished under the Act.245 But it can

be said that by virtue of the retroactivity of section 55 (1), since the crimes committed before the

enactment of the ACECA can fall under the purview of the Act, then it goes without saying that

the punishment of these crimes will also act retroactively, impinging on the doctrine of nullum

poena sine lege.

The law also provides that the courts shall only impose punishments which they are competent to

pass.246 The ACECA provides for the punishment that is to be meted to persons found guilty

under the Act.247 Do the courts have the authority to pass these sentences? The Criminal

Procedure Code248 provides that the Chief Magistrate, Senior Principal Magistrate, Principal

Magistrate and Senior Resident Magistrate may pass any sentence authorized by law for any

offence triable by that court.249 The JSC also has power to extend the jurisdiction of subordinate

courts.250 It is therefore safe to conclude that since the special magistrates derive their powers

from the JSC constitutionally and that since the Parliament acted within its mandate in granting

jurisdiction to the special magistrates vide the ACECA, the special magistrates are competent to

pass sentences so provided in the Act with respect to criminal proceedings. It is also important to

note that with regard to civil trials, the Chief Justice may by Gazette increase or limit the

jurisdiction of the magistrates’ court.251

244
See for instance Article 50 (2) (p)
245
The principle of non-retroactivity as discussed above.
246
See Article 169 (2) providing that Parliament shall enact legislation conferring jurisdiction, functions and powers
on subordinate courts.
247
S 48
248
Cap 75
249
S7
250
S8
251
See proviso to s 5 of the Magistrates’ Courts Act, cap 10

45
The ACECA is therefore a legislation which has some of its provisions conflicting with the

traditional safeguards of criminal trials. This is an Act that was enacted in an attempt to fight the

vice of corruption and other white collar crimes. It therefore follows that there may be

justifications for these provisions and for their departure from the constitutional safeguards in

criminal trials.

46
 CHAPTER FOUR

4. Justifications for the Responses

The responses to white collar crime can be classified into two. The first response is the law’s

endeavor to limit some procedural rights that may otherwise be enjoyed by the accused person in

the process of his trial.252 The purpose of recognizing and protecting human rights and

fundamental freedoms is to preserve the dignity of individuals and communities and to promote

social justice and the realization of the potential for all human beings.253 Where therefore laws

seek to limit the rights enjoyed by individuals, the abrogation of the right(s) must have a good or

sound basis.254 The second limb of the law’s responses is in the law trying to provide for how

public officials ought to conduct their affairs and the qualities that they may possess in order to

be able to hold these offices.255 Both of these responses are the subject of this chapter which

seeks to outline the underlying reasons and justifications for the above responses to white collar

crime. This chapter basically tries to answer the question why the current law on white collar

crime is as it is.

4.1 Hurdles in Prosecution of White Collar Crime in Kenya

The history of white collar crime can be traced to Goldenberg though it can be argued that white

collar crime was happening even before the occurrence of Goldenberg.256 There are other white

252
These are the rights that accrue to the accused and are constitutionally laid down safeguards, see chapter two of
this paper.
253
See article 19 (2) of the Constitution, 2010
254
For instance, the Constitution provides that a right or fundamental freedom in the Bill of Rights shall not be
limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, et al.
255
See the Constitution, 2010 at Chapter Six and the POEA to be discussed later
256
Below n.313

47
collar type crimes that have been committed since Goldenberg.257 What is evident is the lack of

prosecution of white collar crimes and, where there are prosecutions taking place, there are a lot

of oppositions which may lead to the lack of convictions.258 The question then to be asked is,

why is it that there are very few cases that have been brought which try to address the concept of

white collar crime and why have there been few convictions if at all (this is true even after the

passage of the ACECA and the POEA which were enacted to help in fighting the vice, the reason

for this being the case will be discussed later)?259 The answer to these questions will reveal the

difficulties that white collar crime prosecutions face and will hence provide answers as to the

justifications for the responses of the law to white collar crimes as has been discussed in the

preceding chapter.

Evidentiary difficulty is the first reason as to why there have been few prosecutions and even

convictions of white collar criminals.260 This difficulty ranges from detection of the commission

of the crime to its prosecution by reference to either documentary evidence or the enlisting of

witnesses. Detection may take a long time due to the fact that the perpetrator commits the

offence while in the course of his employment.261 It will therefore be difficult to determine

257
Supra n.48-52
258
See The Judicial Commission of Inquiry into the Goldenberg Affair which faced a lot of opposition, refer to supra
n. 39. The recommendations of the Commission were quashed to the extent that they touched on prominent people;
see for instance R v Judicial Commission of Inquiry into the Goldenberg Affair & 2 Others ex p. Saitoti Misc. Civil
App. No. 102 of 2006.
259
The two Acts were passed in 2003 but still there were other white collar type crimes that were committed after
the Acts came into force. This includes Anglo leasing (2004) among others.
260
See for instance, Martin Mutua, Wako Lacks Evidence to Prosecute Charter House Bank at http://www.standard
media.co.ke/print.php?id=2000021444&cid=4 as at 12 December 2011.
261
See Stuart P. Green, “Moral Ambiguity in White Collar Criminal Law” 18 Notre Dame Journal of Law, Ethics
and Public Policy (2004) where he states that most offences are committed in the course of conduct that is otherwise
legal, even socially productive; Consider also the commission of Goldenberg and other white collar crimes such as
Anglo Leasing and the issue surrounding the Kenyan embassy in Japan, et al. These have involved the legislature
passing laws or amending laws and policies that create the right environment for the commission of the crime, see
Chapter One of this paper, refer to the example of Goldenberg International in Chapter One of this paper.

48
exactly when the crime began.262 Even after detection, it is still hard to come up with evidence

that the crime has been committed.263 The reason is because, often, it is only the perpetrator and

the victim who know that there has been commission of crime. The perpetrator will not come

forward and implicate himself on his own volition264 while the victim may not know that he has

been wronged.265 This leaves prosecution in the limbo as there may be no witnesses and no

available evidence.

With regard to the difficulty of detecting the commission of white collar crimes, the ACECA tries

to cure this by providing for the forfeiture of unexplained assets.266 The explanation for this is

that only the accused knows his position in relation to the assets and he is better placed to explain

the rightful ownership of the assets.267 There is therefore no harm done in requiring him to

provide evidence that explain his ownership of the assets.268 To assist in this the law also

requires public officers to declare their wealth.269 By declaring their wealth, the law has provided

262
The example of Goldenberg International comes to mind. The way in which the crime started being formulated
was hard even impossible to detect. It was not until later that a whistleblower raised the red flag. See Chapter One of
this paper.
263
Kelly Strader, Understanding White Collar Crime (2002)
http://www.lexisnexis.com/lawschool/study/understanding/pdf/WhiteCollarCh1.pdf at 22 January 2012, where he
states at pp. 4:
One reason white collar crime remains widespread is that it is often very difficult to detect. Unlike street
and common property crimes, white collar crimes are usually committed in the privacy of an office or
home; usually there is no eyewitness, and only occasionally is there a “smoking gun.” Instead, the
government’s proof is more likely to depend upon circumstantial evidence culled from a complex paper
trail.
264
Peter J. Henning, “The DNA of White Collar Crime”, 11 New Criminal Law Review “The issue is usually
ascertaining what a defendant knew, or wanted, or failed to disclose, which means that there is no easy way to
determine whether a crime actually took place.” The thought of the need for self-preservation cannot allow a man to
incriminate himself, see Thomas Hobbes, supran.58 for an in depth discussion on the same.
265
Stuart P. Green, supra n.24 at pp. 508
266
See s 55
267
See Lord Nicholl’s statement in Johnstone, [2003] 2 Cr. App. R. 493, where he states that “…this is not an
unreasonable burden to impose because in the normal course of events, it will be easier for the defendant to produce
the relevant records, often easier than for the prosecution to do so.” The court went on to say that it is easier for the
defendant to provide/produce the receipt/license in his possession than to seek the prosecution to establish the
absence of the same.
268
It has also already been explained that this is an evidentiary burden which can be placed on the accused. Refer to
Chapter Two of this paper.
269
Part IV POEA titled ‘Declaration of Incomes, Assets and Liabilities’

49
for means whereby the existence of unexplained assets can be unearthed. This will help in the

fight against white collar crimes.270

There is also the imposition of corrupt intent on the accused,271 related to the evidentiary

difficulty in prosecution of white collar offences. The only person that knows what is in the mind

of a man is the man himself and not even the devil knows what is on the mind of man.272 It is

difficult for any man to decipher what is in the mind of man.273 This is further compounded by

the fact that it is usually difficult to find a witness to white collar crime apart from the accused

person himself.274 It is therefore easy for the accused to provide evidence that his conduct was

not done corruptly.275 It is therefore justifiable that the accused, being in the best position to

attest as to his state of mind during the commission of a conduct that is presumed to be corrupt,

to adduce evidence that his was not a corrupt conduct.276 Though this is a manifest departure

from the traditional constitutional position of criminal law, it can be propounded that the law put

the burden on the accused because of the difficulty of proving a corrupt intent on the side of the

accused by the prosecution and because these facts are within the accused’s own knowledge.277 It

can also because of the ramifications of white collar crimes.278 The combination of these two

may have moved parliament to enact statute that may impose a burden on the accused to prove
270
The Standard Editorial, ‘Track Public Officers’ Wealth to End Graft,’ The Standard 11 June 2011 “Unless the
wealth of public officers is tracked, many civil servants will continue to see their positions as a means to enriching
themselves… The spirit of the wealth declaration law was to keep track of public officers’ wealth so that they can be
brought to account if certain gains do not correspond with their incomes.”
271
S 58 ACECA
272
The quote attributed to Brian CJ in Greene v The Queen [1997] 148 ALR 659
273
Ibid
274
Supran.264; n.265
275
Attorney General’s Ref (no 1 of 2004) 2 Cr. App.R 27 at pp. 424 states that the easier it is for the accused to
discharge the burden, the more likely it is that the reverse onus/burden is justified.
276
Furthermore, it has been held that it is upon the State to justify a derogation from the presumption of innocence
and justifying arguments should be compelling if they are to succeed. This was Lord Nicholl’s statement in
Johnstone, supra n.267
277
Ibid; this position is however generally disputed because, as Lord Hope puts it in R v DPP ex p. Kebilene [1999]4
All ER 801 “the mere fact that a matter is peculiarly within the knowledge of one party does not necessarily connote
that it will be within his power to prove it.”
278
These effects are outlined below

50
intention.279 Parliament therefore seeks to protect the wider society from the effects of white

collar crimes.280 The ACECA also gives the special magistrates powers to offer pardon in

exchange for full disclosure by an accused person of the acts of the accomplices281 to act as an

incentive to the perpetrators and also to help the court circumvent the problem of difficulty in the

proving of the commitment of white collar crimes.

The second reason that can be advanced is interference by the high and mighty.282 The

prosecutions of white collar crimes such as the Goldenberg have suffered frustrations from the

haves of the society.283 The institutions and commissions formed to investigate and prosecute

these forms of crimes have also not been spared from the powerful influence of the high and

mighty.284 Because of this, the Constitution sought to entrench the anti-corruption institution in

its article285 so as to protect the institution from the attack of the high and mighty of the land.286

This is the reason for the provision of an article in the Constitution 2010 for the establishing of

the Ethics and Anti-Corruption Commission.

279
See for instance the Court in Canada in R v Wholesale Travel Group [1991] 3 SCR 154 that stated “regulatory
legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment
of acts involving moral fault to the protection of the public and social interests…”
280
ibid
281
S5
282
For instance, see Gathii, supra n.123 where he states that “…cases were being brought to court, however,
Attorney General Amos Wako terminated the cases brought to court by the KACA. The Attorney General argued
that the Kenya Anti-Corruption Authority had gone to court without first obtaining the AG’s consent to prosecute as
required by the Constitution.”
283
In the proceedings of the Commission of Inquiry into the Goldenberg Affair, there was witnessed a lodging of a
lot of cases which were aimed at derailing the process altogether. See supra n.39 where the Commission states that
some of the cases were without merit.
284
The Judicial Commission of Inquiry into the Goldenberg Affair’s report was quashed by the High Court upon
application by Saitoti and Kotut, supra n.258; see also the attack on KACA which led to its being declared
unconstitutional in Gachiengo v Republic, supra n.38 and the way in which the vibrant director of KACC, (the
subsequent anti-corruption institution) Patrick Lumumba was done away with.
285
Article 79
286
Refer to what previous institutions have faced as they try to investigate and prosecute these offenders. Supra
n.284; see also Gathii, supran.133

51
Third is corrupt judicial officers287 and backlog of cases.288 With these two problems, it was

difficult to conclusively prosecute white collar criminals as they are known to have money and

can bribe their way to freedom289 or because of their status in society may not receive the same

treatment or punishment as the perpetrators of the conventional crimes.290It can be said that with

regard to the backlog of cases, the ACECA establishes the position of special magistrates to try

and speed up the prosecution of white collar crimes, since they will majorly be dealing with

crimes under the ACECA.291 With regard to corruption of judicial officers, the law tried to

address the same by passing Chapter Six of the Constitution2010 and the POEA, which are

discussed under the sub-title of ‘legislation on character’ below.

Fourth was the problem of definition of what a white collar crime entailed.292 This may be said to

have contributed to the failure of prosecution since one cannot prosecute what they do not know

287
Gathii, supra n.133 “all three branches of government were staffed with suspected corruption offenders.” He
further states that “the judiciary had once again stepped in and impeded the agency and its fight against corruption.
This was rapidly becoming common happenstance and once again the judiciary had acted on questionable legal
grounds,” alluding to the fact that the judiciary was corrupt. See also pp.3 where he states, “The entire government
was corrupt.”
288
Peter Leftie, Kenya: JSC Seeks New Magistrates to Ease Backlog of Cases, at
http://www.allafrica.com/stories/201110140569.html as at 23 January 2012 where he states that the JSC is seeking
to recruit 160 new magistrates to ease the backlog of cases in lower courts.
289
Or can use their wealth to circumvent the legal system for instance by lodging other suits which are aimed at
derailing their prosecution. Refer to what happened in the Judicial Commission of Inquiry into the Goldenberg
Affair. See Gathii, supra n.123 at pp.38 stating “At the moment, the Kenya Anti-Corruption Commission lists no
less than thirty (30) constitutional petitions challenging the constitutionality of its corruption investigations, charges,
search warrants and the retrieval of documentary evidence among others.”
290
A comparison is made between a chicken thief who may be sentenced to seven years imprisonment and a lawyer
stealing millions and being given a salutary sentence. The case of R v John Kamau Kinyanjui Crim. App. No. 544 of
199 is an apt example. See also Mars Group Blog, Granting Amnesty to Villains of Grand Larceny is a Surrender to
Corruption, at http://www.blog.marsgroupkenya.org/?p=2500 as at 23 January 2012 where it is stated:
In a country where hungry chicken thieves are frequently sent to jail to pay for their (relatively petty)
crimes it is grossly immoral to offer grand scale economic criminals and looters of public funds immunity
from investigation, prosecution and judicial trial as was done by my friend PLO Lumumba’s predecessors
in the infamous Grand Regency Hotel handover by Kamlesh Pattni.
291
S4
292
There was, and there still is, no statute defining what white collar crime is. The farthest the la has gone is to adopt
the family resemblances proposition by Stuart Green in “The Concept of White Collar Crime in Law and Legal
Theory,” supra n.22 by outlining what entails corrupt conduct and economic crime; see s 2 of the ACECA.

52
and what has not been criminalized.293 The road of trying to come up with a definition of white

collar crime has not been smooth sailing294 and even at the moment, there is no definition that is

accepted universally.295 The ACECA sought to avoid this problem of definition by listing

conducts that it considers corrupt and amounting to economic crimes.296 By doing so, it adopts

the proposition by Stuart Green of referring to ‘family resemblances’.297 It therefore lists what is

to be regarded as corrupt conduct and economic crime.298

4.2 Effect of White Collar Crime on the Society

Apart from the difficulty of the prosecution of white collar crimes, the other factor that may have

contributed to the position of the law in regard to the responses to white collar crime is the

effects that these forms of crime have on the larger society. Looking at the various white collar-

type crimes that have occurred in Kenya, we can see the effects that they have on the economy of

the country. For instance, the country lost a lot of money in the Goldenberg affair.299 This further

had butterfly effects on the economy and the society as a whole which was profound.300 Bear in

mind that this was only one white collar crime and also that there have been others of similar

293
Nullum crème sine lege. It is a criminal law rule that a suspect cannot be charged with an offence that has not
been defined by law and whose punishment has not been clearly outlined by the law. This can also be inferred in
article 50 (2) (n) of the Constitution 2010.
294
See Chapter One of this paper.
295
Supra n.22
296
S2
297
Supra n.22
298
Supra n.296
299
The Report on the Judicial Commission of Inquiry into the Goldenberg Affair at para 722
300
Ibid at para 734 stating that “the wider economic implications of the Goldenberg affair are probably better
understood in tangible down to earth human terms as follows…” and goes on to list effects as “The Goldenberg
Affair occasioned an increase in domestic borrowing by the government and therefore diverted credit from the
private to the public sector, and with the diversion of public funds to debt servicing not much money remained to
finance normal public expenditure. Public hospitals had limited medicine, schools had acute shortages of learning
materials” among other effects on the society.

53
magnitudes.301 It is therefore evident that white collar crimes drain the economy of a country. If

the economy sneezes, every other sector of the society will catch a cold.302

It can be said that it is with this in mind that the legislature in passing the ACECA decided to

provide for drastic sentences and punishment for persons convicted of the crimes provided for in

the Act.303 This was meant as deterrence to the commission of white collar crimes.304 The need

for deterrence is calculated according to the profitability of the offence, the ease of committing

it, the pleasure or satisfaction involved, the difficulty of detection, the frequency of the offence in

the area and the degree of organization, that is, punishment should not exceed the crime.305 From

the effects of these forms of crimes as are outlined above, it is therefore safe to conclude that the

punishment for these crimes fit the crime and does not exceed the crime. The punishment is

justified.

It is also with this in mind that the legislation provided for additional liability,306 contrary to the

traditional criminal law position. The imposition of civil liability is meant to try and compensate

those who have suffered from the conduct amounting to a white collar crime.307Apart from that,

the aim also appears to be to try and recover the money that might otherwise have been lost.308

For instance, if the crimes that have occurred in Kenya would have been conclusively

prosecuted, the Government would have at least got back part of the funds that now stand lost. It

301
Supra n.257
302
See Kelly Strader, supra n.263 at pp.4 stating, “Thousands of white collar crimes are committed each year,
causing untold harm.”
303
Consider s 48, on the imposition of a mandatory fine twice the amount of loss and/or gain.
304
Brian Slattery, supra n.12 at pp 31 states that the severity of a sentence is controlled largely by the gravity of the
offence, that is, the harmfulness as well as the need for deterrence.
305
ibid
306
ACECA provides for civil liability under s 51 (liability for compensation), 52 (liability for improper benefits) and
54 (compensation orders on conviction).
307
ibid
308
See Kelly Strader, supra n.263 at pp.7 where, speaking about parallel civil proceedings states, “These reasons
include the ability to recoup money, to obtain injunctive relief, or to protect the public from further harm.”

54
can also be advanced that it is because of this that the law seeks to act retrogressively. The funds

that had been lost because of Goldenberg was too much and the effect on the economy profound.

ACECA was thence enacted to try and recover this money and also punish the perpetrators and

deter the commission of other similar offences.

4.3. Character Legislation

Chapter Six of the Constitution, 2010 and the POEA can be said to be legislations that seek to

regulate the conduct and character of public officers. For example the preamble of the POEA

states that it is “An ACT of Parliament to advance the ethics of public officers by providing for a

Code of Conduct and Ethics for public officers and requiring financial declarations from certain

public officers and to provide for connected purposes.” It further provides for specific309 and

general310 codes of conduct of public officers. The Constitution also provides for how the public

officers ought to conduct themselves311 and the responsibilities that accrue to them and how they

are to exercise their leadership and integrity.312 It is quite peculiar for statutes and especially a

Constitution to make provisions for regulation of character.

The reason for this might be that corruption in Kenya has been so prevalent that it was

considered the name corruption was synonymous with Kenya.313 This problem can be traced way

back to the time that Kenya got its independence.314 This might have been because very few

309
Part II. Provides that with regard to specific codes of conduct and ethics, each commission shall establish its own
codes and ethics for the officers it is responsible for, s 5
310
Part III
311
See article 75 (Conduct of State officers), 76 (Financial probity of State officers) and 77 (Restriction on activities
of State officers).
312
Article 73
313
Gathii, supra n.133
314
Kenya Advisor.com, The Facts about Corruption in Kenya, at
http://www.Kenyaadvisor.com/corruption-in kenya.html as at 23 January 2012, where it is stated that, at
the time of independence, “Kenyatta did not return those lands to the former owners, but handed it over to

55
cases of corruption were being prosecuted and even where they were being prosecuted, only the

small fish were being bundled to courts.315 This created a culture of impunity in the commission

of corruption (white collar crime).316 One singer aptly captured the situation in Kenya in his song

‘Nchi ya kitu kidogo’, meaning a country bedeviled with corruption.317One way of curbing this

was therefore to go to the root cause of the matter, which was to address the conduct and

character of the public officers.318 The Constitution 2010 attempts to give rise to a new value

system that defines the parameters necessary to hold public office and gives an impetus to the

POEA. These requirements, if applied, in letter and spirit have the potential to render redundant

the old brand of public servants and the old ways of public service delivery.319

In summary, these reasons can be said to be the justifications for the position of the law with

regard to white collar crime. Despite some of them being a departure from the traditional

constitutional position in criminal trials and others trying to regulate the conduct of man, the

question is whether they have or will succeed and what can be done to make these provisions

enforceable and not just beautiful pieces of legislation on paper. This will be discussed in the

members of his own clan and tribe (the Kikuyu). Kenyatta himself became one of the largest private land
owners in the country.” He further states how corruption continued under former President Moi’s rule and
President Kibaki’s tenure.
315
Nation, Corruption Scandals: Kenya’s Bane at http://www.nation.co.ke/News/-/1056/863586/-/vqjwk0/-
/index.html as at 23 January 2012 where the author states:
The problem with Kenyans is that we are not tenacious, or we have the languor/ apathy that come over time
due to year after year of unsolved issues. Recapping the last 10 years, not one year goes by without a
scandal of such a magnitude that rocks the nation. However, less that 1% of them are solved, including the
prosecutions that started rolling on the Goldenberg scandal (my favourite example) with the protagonist off
the hook and looking forward to vying for elections come next elections.
The author goes on to list the major scandals that have rocked this country and which remain unsolved; see also The
Standard, infra n.318, “It is common knowledge that impunity ails our country. That the law is not applied equally
and those with power and wealth have devised mechanisms that attempt to circumvent or shield them from effective
application of the law.”
316
Gathii, supra n.123 at pp.41
317
The song was sang by Henry Wainaina
318
Previously, corruption was not regarded as a systemic and endemic problem, but rather as a problem that could
be resolved through discrete legislative amendments. See Gathii, supra n.133 at pp.3
319
Hassan Omar, “Integrity to unlocking New Laws”, The Standard, 7 September 2010.

56
final chapter where this paper seeks to summarize everything and make recommendations

regarding the law on white collar crimes in Kenya.

57
 CHAPTER FIVE

5. Conclusion and Recommendations

5.1 Conclusion

The law on white collar crime in Kenya has made major strides since the happening of the

Goldenberg Affair. This is evidenced by the passing of the two Acts in 2003, that is the ACECA

and the POEA, the enactment of the Proceeds of Crimes and Anti-Money Laundering Act in 2009

and the promulgation of the Constitution 2010 in the 27th day of August 2010 which ushered us

into a new constitutional dispensation, and this was subsequently followed by the enactment of

the Ethics and Anti-Corruption Commission Act in 2011. These laws have tried as much as they

can to provide for ways of containing the commission of white collar crime. They have done this

through the several ways provided for in this paper such as providing for rules on conduct and

character, severe punishments to the convicted, entrenchment of the institution mandated to fight

corruption and economics crimes in the Constitution, providing for special magistrates whose

work is majorly to deal with the corruption and economic crimes and thus try and address the

problem of the backlog of cases that have hounded our judicial system, the empowering of these

magistrates to engage in granting of amnesties in order to improve the securing convictions

among other provisions that have been discussed herein.

Most of these provisions do not have any constitutional implications on the traditional safeguards

in criminal trial as they are not in any way conflicting with these traditional safeguards.

However, there are other provisions on the law on white collar crime which have been outlined

in this paper, for instance in the ACECA, which have gone to the extent of making provisions

that have been deemed to be unconstitutional since they infringe on the traditional and

58
constitutional laid down safeguards in criminal trial and the reasoning that may be advanced is so

that they will enable the State attain its objective of curbing the commission of these crimes. The

final concern of this paper in its conclusion is whether the end always justifies the means. Do the

results of a matter negate the process through which the results were obtained? There are several

reasons which have been propounded as to why the rights of a white collar criminal in relation to

the constitutionally laid down safeguards of criminal trials may be curtailed, the justifications of

which are outlined in the previous chapter.

It is important to first note that the issue of limiting the rights and fundamental freedoms is not a

new thing as even the Constitution 2010 allows for instances when the rights and fundamental

freedoms of a person can be limited.320 However, the right to a fair trial belongs to a group of

rights that have been given a higher status compared to the other rights and thus should not and

cannot be curtailed.321 This is the reason why we are talking of an impingement on the

constitutional safeguards to criminal trials when we refer to the right to a fair trial being

abrogated to some extent by the ACECA. The concern then would be whether the impingement

that has been outlined in this paper is permissible, basing the permissibility on the consequences

and impacts of white collar crimes on the population at large or on the society vis a vis the rights

of the accused person as an individual. This position, on determining permissibility, can be

traced to the case of Sheldrake v DPP322 where Lord Bingham stated that “the task of a court is

never to decide whether the reverse burden should be placed on a defendant, but always to assess

whether a burden enacted by Parliament unjustifiably infringes the presumption of innocence.”

320
See article 24
321
Article 25 provides for rights and freedoms that may not be limited of which the right to trial, wherein lies the
right to be presumed innocent until proven guilty, is also among the rights not to be limited.
322
[2004] UKHL 43

59
The justifications or reasons propounded as to why the law on white collar crime in Kenya

impinges on the constitutionally laid down safeguards in criminal trials can be said to make

sense. This is because one will tend to look at the argument of public interest versus the accused

person’s interest and one may end up deciding that it will not be unjust to require the law to

impinge on some of the rights of an accused in a criminal trial as it will be of greater benefit to

the public at large, that there comes a time when the rights of the greater society becomes greater

than the individual right of the person. 323 This position raises a concern as to the question of

whether the Constitution can allow other laws to contradict it and if by so doing it contradicts

itself.

In coming up with a legislation that would tend to go against any laid down norm or tradition and

therefore likely to raise an issue of the enacted law’s constitutionality and the implications

thereof, Dickson CJC of the Supreme Court of Canada in the case of R v Whyte324 reasoned that:

There are three components to the proportionality test; the measure must be carefully designed to achieve
the objective of the legislation with a rationale connection to the objective. The second component is that
the measure would impair the right or freedom as little as possible. Finally there must be proportionality
between the effects of the impugned measures on the protected right and the attainment of the objective.

Looking at the three components to the proportionality test as against the provisions of the law

on white collar crime in Kenya, we ask ourselves whether the provisions meet the threshold set

in the case.325 With regard to the first component, it is true that the provisions were designed to

achieve the objective of the legislation, that is, the fight against white collar crime, bearing in

323
See for instance R v Wholesale Travel Group, supra n.279 wherein the court stated “…regulatory legislation
involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts
involving moral faults to the protection of the public and social interests…”
324
[1988] 51 DLR (4th) 481at pp 495
325
It should be noted that this case is used as a persuasive text rather than a binding precedence.

60
mind the effects of the white collar crime that have occurred in Kenya.326 The second component

of the requirement is that of the law impairing the right or freedom as little as possible. Then we

ask ourselves whether the shifting of the legal burden of proof on the accused person can be

considered as impairing the right to a fair trial as little as possible. This can be said to be a little

abrogation as it requires the accused to prove only matters that are exclusively within his

knowledge. However, position of shifting the legal burden on the basis that it would be easier for

the accused to prove his innocence than the prosecution to prove his fault does not sit well with

the courts.327 To this extent then, the law on white collar crime limiting the right to a fair trial is

thus not permissible. Third, we look at the proportionality between the effects of the measures on

the protected right and the attainment of the objective. This leads us to the question of which is

important between the protection of a right and attainment of an objective, leading us to the

question that was raised at the beginning of this chapter, does the end justify the means? The end

is usually mostly for the benefit of the public and this revelation then describes the question of

determining which has more importance between public interests and private interest, to which I

will draw inspiration from the case of Kenya Anti-Corruption Commission v Stanley Mombo

Amuti 328 in making the decision on which of the two is more important. The court stated:

The balance between public and private rights, between the process of bringing the wrongdoers to the
threshold of the justice and expectation of the public to see that justice is in actuality rendered between the
social aspirations of a common man and the rights of the persons brought before the courts, is a delicate
one (emphasis added) and courts have to be wary to bring in any factors which should not pass through the
network of fair and just process of law.329

326
This can even be traced to the preamble of the ACECA which states that it is an Act of Parliament to provide for
prevention, investigation and punishment of corruption, economic crime and related offences and for matters
incidental thereto and connected therewith.
327
In R v Johnstone [2003] 1 WLR 1736 The House of Lords noted that any derogation from the right to be
presumed innocent required justification and that the more serious the punishment which may flow from conviction,
the more compelling the reasons must be. Therefore a derogation that seeks only to infringe on this right on the
basis that it is easier for the defendant than the prosecutor to prove a matter, and that being a legal burden, will not
hold water.
328
Below n.333
329
At pp8

61
Therefore it cannot just be said that since the law in focus is likely to bring much public benefit it

therefore ipso facto acceptable. But even with this in mind, it is important to appreciate the fact

that the provisions of ACECA do not just go against any norm but the grund norm which is the

Constitution. Let us then draw ourselves to the supremacy of the Constitution.330 The

Constitution is the supreme law of the Republic, it binds all persons and all State organs and

also, any law, including customary law, which is inconsistence with this Constitution, is void to

the extent of the inconsistency, and any act or omission in contravention of this Constitution is

invalid.331 This is the position of the law. Adding to this the provision that the right to a fair trial

is one of the rights that cannot be limited, it then follows that every privilege or right which is

contained in the bundle of the right to a fair trial cannot be abrogated and any law that seeks to

limit the same is contrary to the Constitution and thus null and void to the extent of its

inconsistency. Whether this right may lead to a perceived advantage to the accused does not

negate its importance of the right and therefore it cannot be impinged. In the case of Christopher

Ndarathi Murungaru v Kenya Anti Corruption Commission and Another332, the court observed:

We recognize and are well aware of the fact that the public has a legitimate interest in seeing that crime,
of whatever nature, is detected, prosecuted and adequately punished. But in our view, the Constitution of
the Republic is a reflection of the supreme public interest and its provisions must be upheld by the courts,
sometimes even to the annoyance of the public.

It is therefore the view of the courts in their interpretation that there can be no justification for

the infringement on an accused person’s right to a fair trial. This is further given an impetus by

the case of Kenya Anti-Corruption Commission v Stanley Mombo Amuti333 where the court held

that:

I am aware of the object of The Act and I wish that the legislature would have enacted an appropriate
provision of law which would have fulfilled its purpose along with following the due process. The court,

330
Article 2
331
ibid
332
[2006] e KLR
333
civil suit no 448 of 2008 (o.s)

62
 despite the temptation, social or emotional, cannot fill in the gaps in law. The absence of fair trial in the
process stipulated in Sec. 55 (5) and (6) of The Act, does render those provisions starkly inconsistent to the
provisions of Constitution i.e. Article 20, 25 and 40 (3). The proceedings filed by the Commission by way
of the present Originating Summons, is thus null and void and I declare so.334

The learned judge earlier in the judgment observed that, “It will be a truism to state that the

Constitution is supreme and no provisions of law which contravenes the Constitution should be

allowed to stand or be given any deference,”335 implying that the traditional position of the law,

which is well known and appreciated since time immemorial is that the Constitution is the

supreme law and cannot be contravened. The conclusion of this paper is therefore that the

relevant sections of the law on white collar crime that have been alluded to and discussed have

the implication of impinging on the constitutional laid down safeguards in criminal trials. It is

therefore the position of this paper that since the relevant sections336 of the ACECA discussed in

this paper are contrary to the Constitution, they are null and void to the extent of their

inconsistency, to the extent that they have the implication of impinging on the constitutionally

laid down safeguards of criminal trials.

As regarding the POEA, one cannot say that the requirement to declare their wealth goes

contrary to the constitutional right to privacy.337 This is because this right can be weighed as

against the right to access information338 which has the added weight of public interest. Since

both the rights are contained in the Constitution, it can be postulated that in this instance, public

interest may be referred to in order to give sway to a decision which concerns the two rights.

Further, and in line with this position, the right to privacy is not among the rights that cannot be

334
Ibid at pp10
335
Ibid at pp7
336
The relevant sections alluded to above which are inconsistent with the Constitution are sections 55 and 58 which
have been discussed above and which tend to impute a corrupt intent on the accused and requires him to dispense
with the same and also s 55 (1)to the extent that this section tends to be interpreted as being retroactive.
337
This right is provided for under article 31 of the Constitution 2010
338
At article 35

63
limited.339 Also, this is not concerned with the safeguards to criminal trial and this paper

therefore does not seek to dwell much on it.

5.2. Recommendations

After having looked at the relevant provisions of the law on white collar crime and the extent to

which some of the provisions impinge upon the constitutionally laid down safeguards in criminal

trial, the first recommendation would be to Parliament. Parliament has the constitutional powers

of passing and amending statutes.340 Parliament should therefore amend the relevant provisions

of the law that have been outlined so as to conform to the Constitution because as it stands, no

person can be successfully convicted under the relevant sections so long as they are inconsistent

with the Constitution, as the Constitution is the supreme law of the land and it takes precedence

where other laws are inconsistent with it. The learned judge in the case of Stanley341 concluded

the case by stating, “I direct that this judgment be served on the State Law Office and Law

Reform Commission with the hope that appropriate actions shall be taken”342 and this paper

would like to adopt this as its first recommendation, assuming that the learned judge in his

wisdom implied amendment as the appropriate action to be taken. It is therefore my opinion that

unless this is done, the cases that will be brought touching on the relevant sections outlined in

this paper which are contrary to the provision of the Constitution will not see the light of the day

and may go the Stanley case343 way.

The second recommendation with regard to these sections can be made to the courts in their

constitutional power of interpreting statutes. They may decide to read down the sections that are

339
As per article 25 of the Constitution 2010
340
Consider article 94 of the Constitution 2010
341
Supra n.333
342
At pp10
343
Supra n.333

64
inconsistent with the Constitution. A court can avoid the incompatibility if it can interpret the

legislation to impose only an evidential and not a legal burden on the defendant.344 In England,

the power of the court to read down offending provisions was for instance outlined in the case of

Keogh v R345 wherein the court stated:

…legislation be interpreted and applied compatibly with human rights required that legislation which, on
its natural meaning imposed a burden on defendants to establish their innocence, be read in such a way as
to impose this substantive obligation on the prosecution…may involve the ‘reading down’ of express
provisions and also the implication…of provisions to ensure human rights compatibility.

This having been said, The ACECA was passed in 2003 and so was the POEA. Despite their

being made into law and the perceived advantages that have been outlined in this paper, the

commission of white collar type crimes has not been contained. Several white collar type crimes

have occurred since then.346 This is in spite of the other provisions of the law on white collar

crime that may be considered to be imposing deterrence on the commission of white collar

crime.347 This paper appreciates the fact that ours is a peculiar kind of white collar crime as

compared to what was envisaged by the formulators of the concept of white collar crime.348

Fighting this form of crime, this paper submits, requires going to the root of the crime and not

just enacting laws that impinge on the constitutional rights of individuals. Corruption (and other

white collar crimes by extension) is the interface between opportunity and inclination.349

Opportunities are afforded by weaknesses in the systems, processes and procedures which

present loopholes to be exploited while inclination is the state of mind induced by lack of

344
See Ian Dennis supra n.79 at pp 457.
345
[2007] EWCA Crim. 528; see also Webster v R (2010) EWCA Crim. 2819 where the court held that “While the
statutory language unambiguously intended to reverse the presumption of innocence, the Court nonetheless held that
the provision could be read down so as not to infringe Webster’s rights.”
346
Supra n.48-52.
347
For instance provisions on punishment which can e considered to be quite heavy, consider s 48 which places a
fine of double the amount of benefit and/or loss.
348
See Chapter One of this paper on the history of white collar crime.
349
Justice (rtd) Ringera, Speeding up of Adjudication of Corruption Cases at
http://www.kacc.go.ke/archives/speeches/JUDGES-PRESENTATION.pdf as at 9 March 2012 at pp.4

65
appropriate values, the existence of impunity and the low opportunity cost of the conduct.350

Corruption may be seen as taking opportunity which a man of integrity will pass by.351

Parliament should seek to seal all or most of the loopholes in the law that may be abused by

white collar criminals by looking at the law dealing with corruption and white collar crimes by

extension and amending the same to seal the loopholes which have led to the occurrence of other

white collar-type crimes despite there being laws to prevent their occurrence. These loopholes

include failure of detection of white collar crime perpetration, failure of prosecution or slow

court processes, ease of amendment of the law among others.352

One of the major reasons for Chapter Six of the Constitution 2010 was to address this problem,

to give an impetus to the POEA.353 This was to create a culture of honesty and integrity, and not

just a culture, but the two laws sought to impute a code of conduct that all public officers will

have to ascribe to and by so doing tried to address the root of the cause of corruption and

economic crimes, that is, the culture of impunity in Kenya. However, more still needs to be done

to ensure that the fight against white collar crime is on the right track and not only on the right

track but successful. This leads to the following subsequent recommendations.

The next recommendation would be to give the Ethics and Anti-Corruption Commission

prosecutorial powers. The Bill354 that was intended to establish the Commission in accordance

with article 79 of the Constitution 2010 was watered down by the Members of Parliament.355 It

350
Ibid
351
Ibid. He states that there can be no act of corruption where no opportunity exists. That no matter how one is
inclined, corruption cannot occur if the opportunity is non-existence.
352
It is worth noting that some of these so called loopholes are addressed in this recommendation
353
Supra n.319
354
The Independent Ethics and Anti-Corruption Commission Bill, 2011
355
See Walter Menya, MPs Lack Will to End Graft, Says Mutula, at
<http://kenyauptodate.blogspot.com/2011/12/mps-lack-will-to-end-graft-says-mutula.html >as at 1 March 2012.
According to article 11 (d) of the Independent Ethics and Anti-Corruption Commission Bill, the commission has the
additional function to; “investigate and prosecute any acts of corruption or violation of codes of conducts or other
matter prescribed under this Act, or any other law enacted pursuant to Chapter Six of the Constitution. The Bill also

66
provided for prosecutorial powers but because of the fear that the MPs had, this specific

provision was deleted, leaving the commission to be a toothless dog.356 The importance of giving

the Commission prosecutorial powers is that first, it will encourage a seamless chain in anti-

corruption cases and the commission would then be held to account for its failures rather than

share the blame with the AG/DPP over matters they have no control over as has been the outcry

in the past.357 This will then lead to a second advantage which is to offload the huge amount of

work currently placed at the understaffed AG’s office and lead to higher success rates.358 The

third reason which encompasses the two is that the AG’s office has failed in the past to prosecute

corruption cases and we have no guarantee that the DPP will succeed in the future.359 The

argument is also made that successful anti-corruption bodies all over the world also tend to have

these prosecutorial powers. In this region Uganda, Tanzania, Malawi, Zambia and Nigeria are

examples that have conferred prosecution powers upon the anti-corruption bodies.360 The

empowering of the Commission will thus help in the fight against white collar crime. Further, it

is worth noting that Article 157 (12) of the Constitution 2010 gives power to Parliament to enact

legislation conferring powers of prosecution on authorities other than the DPP. The conferring of

the prosecutorial powers will therefore not be unconstitutional as was deemed to be the case

during the determination of the Gachiengo case.361 Concerning the interference by the high and

mighty in the prosecution of white collar crimes, it would have been good if the Constitution

provided for the power of prosecution under s 13 (2) (d) which provided for powers to prosecute anything within its
mandate.
356
ibid
357
Samwel Mbithi, Ethics and Anti-Corruption Body: To Prosecute or Not at
<http://tikenya.org/index.php?option=com_content&view=article&id=130:ethics-and-anti-corruption-body-to-
prosecute-or-n&catid=110:ethics-and-anti-corruption-body-to-prosecute-or-n&Itemid=147> as at 1 March 2012.
358
ibid
359
See Altering of Bill Clips Powers to Prosecute Graft Cases at <http://safariafricaradio.com/index.php/reforms/94-
reforms/1423-altering-of-bill-clips-powers-to-prosecute-graft-cases> as at 1 March 2012.
360
Mbithi, supra n.357
361
Supra n.38

67
would have entrenched the powers of the Ethics Commission, especially the prosecutorial

powers. This would have made it difficult for Parliament to make amendments which would strip

the powers of the Commission as was evidenced during the debate on the passing of the Ethics

and Anti-Corruption Commission Act, no.22 of 2011.

The fourth recommendation would be to make compulsory and public the wealth declarations

made by all the members of Parliament and by extension, every citizen of the country.362 Anyone

who desires to see the wealth status of another will be at liberty to do so. Other than making

these declarations public and mandatory, the Government should employ persons who are able to

analyze, that is, review and verify wealth declarations so as to know, for instance, the persons

who have made false declarations. This is because currently, most of the people responsible for

analyzing the same upon the making of the returns are not well conversant with what they should

be doing with the declarations.363 The principal goal of income and asset disclosure systems is to

inculcate a culture of honesty and hard work, and to combat corruption in two ways: to prevent

corruption by identifying actual and potential conflicts of interest before any misconduct takes

place and to help investigators uncover actual wrongdoing and illicit enrichment after it

occurs.364 In the new Kenya, public servants must be people of great integrity, and wealth

declarations must be open to unrestricted public scrutiny as a component of government

362
See Erastus Rweria, The Status of Wealth Declaration in Kenya: Are We Getting Anywhere?, at
<http://www.marsgroupkenya.org/Reports/Government/feb_07/THE_STATUS_OF_WEALTH_DECLARATIONS
_BY_PUBLIC_OFFICERS_IN_KENYA.pdf> as at 1 March 2012 stating that not all the public officers had
remitted their wealth declaration forms. He further states that the Government does not know the persons who are
expected to make their declarations, leave alone those who have not made the returns. This raises the question
whether the declaration of wealth by public officers is compulsory.
363
Ibid. In his recommendations, he cites one reason for the failure of the wealth declaration initiative to be the
incompetence of the relevant officials.

364
See Okiya Omtata, To Crush Official Corruption Make Wealth Declaration Open to the Public at
<http://allafrica.com/stories/201101101100.html> as at 1 March 2012.

68
transparency and accountability.365 To turn the tide on official corruption, government must

publish the declared information and ask the general public to verify it for that will expose

crooks and help recruit the masses to start a structured popular war on corruption to support the

official one, creating an effective and successful countrywide anti-corruption regime.366 This

may in turn help in the problem of the detection of white collar crime commission as it would

help bring to light those whose assets are not commensurate with their earnings.

The law requires that a crime has to be sufficiently and unequivocally declared for them to apply

to the defendant under the common law phrase of nullum crimen sine lege.367 As to the

determination of what is and what is not a white collar crime, that is the definition of white collar

crimes, I would like to adopt the position of Stuart Greene who introduced the use of the word

‘family resemblances’368 for the reasons that he propounded and which this paper is not

adequately placed to outline in detail. In fact, this paper would not seek to alter the position that

the ACECA has adopted in its definition of corruption and economic crimes to entail what white

collar crime in Kenya is.369 The public vetting of public officials is also a good way to go as was

the case during the vetting for the position of Chief Justice and Director of Public Prosecutions

among other judicial officers that have faced the vetting bench. This will help weed out the

persons who have been engaged in earlier corrupt activities and therefore deny them a chance to

enter and infiltrate the new system or institutions.

365
ibid
366
Ibid
367
See Chapter Two of this paper where the same has been referred to.
368
See Stuart P. Greene, “The Concept of White Collar Crime in Law and Legal Theory” supra n.22 at pp.129
369
Refer to s 2 of ACECA

69
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