Lawmakers are pushing to amend the law to give the Ethics and Anti-Corruption Commission (EACC) prosecutorial powers over their own cases.
This would be the biggest change to the justice system since the 2010 Constitution was enacted.
MPs have accused the Office of the Director of Public Prosecutions (ODPP) of mishandling cases and hindering the fight against corruption and economic crime.
Led by Mr Gitonga Murugara, the chairman of the Justice and Legal Affairs Committee (JLAC) and MP for Tharaka, the call to share the DPP's prosecutorial powers with other government agencies in the fight against corruption, which is deeply rooted within the public sector, has rekindled the age-old debate.
This comes amid calls by EACC CEO Abdi Mohamud for the commission to be granted the power to prosecute its own cases, and accusations against DPP Renson Ingonga of sitting on files submitted for prosecution and of acting on his own motion to withdraw matters already before the courts.
During a recent meeting with the JLAC, insiders at the EACC disclosed that the actions of the DPP have demoralised investigating officers at the commission, who believe that their efforts to expose corruption have been abused.
They blame “constant withdrawal of cases by the DPP, back and forth movement of files between the EACC and DPP as deliberate efforts to block prosecutions.”
National Assembly's Justice and Legal Affairs Committee, chaired by Tharaka MP Gitonga Murugara (right) and his vice chair Mwengi Mutuse during the Justice & Legal committee meeting in 2022.
Photo credit: Lucy Wanjiru | Nation Media Group
At a meeting with the National Assembly Budget and Appropriations Committee (BAC), chaired by Alego Usonga MP Samuel Atandi, Mr Murugara said that the DPP was given the prosecutorial powers to delink prosecution from the investigative agencies and vice versa.
But Mr Murugara, while presenting the 2025/26 financial year supplementary budget estimates for the government agencies under the purview of his committee, noted that the wanton withdrawal of cases by the DPP has affected the war against corruption.
“We must think of granting prosecutorial powers to the EACC specifically for corruption and economic crimes cases,” said Mr Murugara, even as Ugenya MP David Ochieng noted that “JLAC has the competence to question the DPP’s actions.”
But Mr Murugara stood his position, saying that by granting EACC the prosecution powers, it would help address the “current antagonism between the two State agencies.”
Office of the Director of Public Prosecutions.
Photo credit: Photo | Pool
“The situation is that the DPP will set a person free, and the EACC, with all the efforts employed in investigating cases, will be up in arms, helpless,” he added.
The proposed amendment will be anchored on Article 157 (12) of the Constitution, which states that “parliament may enact legislation conferring powers of prosecution on authorities other than the DPP.”
This constitutional provision gives parliament the latitude to repeal the EACC Act and grant the EACC the powers to prosecute its own cases.
“We should have a sit-down with the EACC and ODPP and explore the need for harmony. If this doesn’t materialise, then the DPP should be prepared to have EACC given prosecutorial powers,” said Mr Murugara.
Towards the end of 2025, DPP Ingonga had withdrawn at least 18 high-profile corruption and economic crime cases since his appointment in late 2023, the highest compared to his predecessors- Noordin Haji and Keriako Tobiko.
The withdrawn cases specifically involve county government officials, including former county governors, county executives and Members of County Assembly.
The Tharaka MP’s push comes after Mr Mohamud, at a previous meeting with MPs, accused the DPP’s office of acting like a rogue entity with unchecked powers to decide closure or return of files, a situation he revealed had caused challenges in prosecuting the corruption and economic crimes cases.
“If EACC were to prosecute cases we have forwarded to the DPP, we would be seeing a very different scenario,” Mr Mohamud said at a recent meeting with the House Committee on Constitutional Implementation Oversight Committee (CIOC), chaired by Nandi Hills MP Bernard Kitur.
Ethics and Anti-Corruption Commission CEO Abdi Mohamud.
Photo credit: Wilfred Nyangaresi | Nation Media Group
This, even as Mr Atandi sought to know whether the commission would abuse the prosecutorial powers if granted.
“The current arrangement offers credible checks and balances. How sure can we be that if granted powers to prosecute, the EACC would not abuse them?” posed Mr Atandi.
But Endebess MP Dr Robert Pukose, the BAC Vice Chairperson, faulted the current separation of roles between the DPP and the investigating agencies, saying that they were designed to see a continuation of corruption.
“You have investigated cases, you have evidence, why give the file to someone else to prosecute?” wondered Dr Pukose as Mr Atandi reminded him that it is how the law was formulated.
Currently, the State investigative agencies, like the EACC, investigate cases and then forward files to the DPP for prosecution.
The Office of the DPP is established under Article 157 of the Constitution as the primary body to institute and undertake criminal proceedings against any person before any court, save for court martial, which holds its own internal military prosecutions.
The DPP can also delegate prosecutorial powers to other authorities “where a specific Statute allows.”
The Director of Public Prosecutions (DPP) Renson Ingonga.
Photo credit: Bonface Bogita | Nation Media Group
This includes prosecution assistants such as police officers and lawyers in other government agencies, who are gazetted to prosecute specific types of cases under the DPP’s supervision.
Any person can also institute a private prosecution, but must notify the DPP in writing within 30 days.
However, what should worry the MPs and may call for constitutional review is the fact that the DPP retains the power to take over and either continue or discontinue such private prosecutions, but with the court’s permission.
According to Mr Murugara, “the DPP chooses not to prosecute these cases or returns the files to the EACC for reinvestigations,” and once they are sent back to the ODPP, they are not prosecuted, or others have recommendations for file closure.”
“It is either the DPP prosecutes cases the way they should, or we amend the law to grant EACC the powers,” says Mr Murugara. “It was originally designed that investigators should not prosecute and vice versa to separate the roles and ensure independence. But that seems not to be working,” the JLAC chairman said.
Mr Mohamud told the MPs that delays in prosecution are largely due to institutional limitations, including the commission’s lack of direct prosecutorial powers and appealed to parliament to consider legislative reforms that would grant the EACC authority to prosecute corruption cases directly.
“Most investigations conducted by the commission are forwarded to the DPP, where they sometimes stall,” stated Mr Mohamud, adding, “the DPP has extensive discretion to open or close cases, which can sometimes limit the Commission’s ability to see investigations through to prosecution.”
