“To stem such surreptitious withdrawals and terminations, this country should consider mounting periodic lifestyle audits and integrity tests for its investigators and prosecutors. This will not only ensure integrity and accountability but will also restore public confidence in such institutions and agencies. Given the critical and delicate nature of anti-corruption cases, for instance, there should be no room for deal-cutting, blackmail, or witch-hunting”-Judge Nixon Sifuna of the Anti-Corruption and Economic Crimes Court
By The Weekly Vision Team
Judge Nixon Sifuna of the Anti-Corruption and Economic Crimes Court has read a riot act against the Chief Executive Officer of the Assets Recovery Agency and an investigator attached to the agency for controversially withdrawing a money laundering case.
The ruling has put the agency’s CEO/Director General Alice Mate and investigator Corporal Isaac Nakitare in a tight spot, with the judge describing the withdrawal as negligent, reckless, careless, rash, and parody-like in the manner in which the case was investigated. The judge went on to warn that should the accused firms file a suit demanding compensation, such compensation should be paid personally from the investigator’s private funds and not from public funds.
The agency had moved to court to demand a declaration that three companies, namely Flutterwave Payments Technology Ltd., Hupesi Solutions Ltd., and Adguru Technology Ltd., were involved in money laundering. The agency filed a forfeiture suit dated November 17, 2022, urging the Court to issue orders declaring monies on certain accounts of the three companies as proceeds of crime and hence liable for forfeiture to the Kenyan Government.
The said motion was signed by Ms. Jennifer Gitiri (Principal State Counsel) for the agency’s director. The grounds of the motion as well as the supporting affidavit of Corporal Isaac Nakitare (sworn by him on November 17, 2022), an investigator at the agency, detailed how there had been extensive investigations that had revealed that the said funds were proceeds of crime and that the subject accounts were used as conduits of money laundering in the guise of providing merchant services.
Before that, the agency had, by an earlier motion of August 18, 2022, obtained court preservation orders preserving the funds by freezing the accounts and prohibiting the respondents from accessing them. Those orders were granted by the court on August 19, 2022. However, when the suit came up for hearing on May 4, 2023, Mr. Kandie Advocate, holding brief for Ms. Gitiri for the agency, informed the court that the agency had filed a Notice of Withdrawal, withdrawing this suit.
The said notice, which was dated April 28, 2023 (and filed on May 3, 2023), and which was signed by the said Ms. Gitiri, the agency’s counsel, did not contain any reasons for the said attempted or intended withdrawal. The judge, however, noted, “Noting that this was a public interest case as stated by the agency itself in the said motion and touching on economic crime and money laundering, I decline to endorse such a casual and leisurely withdrawal.
The judge, however, instead directed that, in the public interest, the withdrawal be by an affidavit of the agency’s Chief Executive Officer, its Director, detailing therein the reasons for the decision to suddenly withdraw a suit professed by the pleader to be of public interest.
Following those directions and orders, the agency filed two affidavits for withdrawal of the suit. The first is the affidavit of Brigadier Alice Mate, its Director and Chief Executive Officer, sworn by her on October 17, 2023. The second one is the affidavit of the agency’s said investigator, Corporal Isaac Nakitare, sworn by him on October 4, 2023.
Interestingly, the Corporal has stated that after evaluating all the evidence he obtained during his investigations as well as explanations from the directors of the three companies and also reading certain court decisions, he came to the inevitable conclusion that the frozen funds are not proceeds of crime and the directors of the three firms are innocent.
The judge in his ruling said, “To such investigators and prosecutors, I have in my recent decisions firmly held and still do that commencing proceedings without having completed investigations is not only inappropriate (especially such serious proceedings), but also negligent, reckless, and absurd.”.
In a strongly worded ruling, the judge noted, “It is high time investigative and prosecutorial agencies such as ARA, EACC (the Ethics and Anti-Corruption Commission), KRA (the Kenya Revenue Authority), and the Office of the Director of Public Prosecutions (the ODPP) disabused themselves of this reckless habit.”
The ruling further reads, “Commencing substantive forfeiture proceedings before completing investigations, such as alleged by the ARA in this case, is unacceptable; and in the event of such suits and cases being lost, such investigators and prosecutors should be liable for the resultant costs and compensatory damages that an aggrieved party or person that later wins the case may claim against the government or that public agency.”.
The tough ruling further reads, “Such compensation should be paid personally from such an investigator’s private funds and not from public funds.”
The final order reads, “After considering the affidavits of the agency’s two officers, as well as my earlier ruling herein on July 20, 2023, declining the agency’s request to withdraw this suit, the withdrawal is hereby allowed, and the suit is accordingly hereby marked as withdrawn with costs to the respondents.”.
However, the judge made it clear that “this withdrawal is, however, on condition that any civil or tortious liability suit(s) that may hereafter arise as a consequence of this termination of this forfeiture suit shall not be passed to the Government of Kenya or be levied on public funds. The same shall be borne solely and personally by the agency’s director, Brigadier Alice Mate, and its investigator, the said Corporeal Isaac Nakitare, jointly and severally from their own personal finances. This is because of the negligent, reckless, careless, rash, and parody manner in which this case was investigated and this suit was instituted and driven.”
The judge made a moving ruling by using the Simon Makonde story. The judge noted, “It was conducted in a Simon Makonde style (the sad story of the primary school reader series); where today the suit is filed, tomorrow it is alive, and the next day it has been suffocated to death by its own initiator, the Agency.”
To further show how disappointed the judge was, he ruled, “To stem such surreptitious withdrawals and terminations, this country should consider mounting periodic lifestyle audits and integrity tests for its investigators and prosecutors. This will not only ensure integrity and accountability but will also restore public confidence in such institutions and agencies. Given the critical and delicate nature of anti-corruption cases, for instance, there should be no room for deal-cutting, blackmail, or witch-hunting”. As I lift off my pen, may this suit now rest in peace.”.
