Thursday, May 26, 2022


Half of lawyering is reading and comprehension. Now...

Article 157 (12) of the Constitution says that Parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecutions. It is quite different in tone and import from clause 9 which say that the powers of the DPP may be exercised in person or by subordinate officers acting in accordance with general or special instructions.

Article 157 (9) and section 22 (1) of the Office of the Director of Public Prosecutions Act, 2013 say almost the same thing, the difference being one of emphasis rather than constitutional and statutory intent. Section 22 (1) says that the DPP may, subject to such conditions as he or she may impose in writing, delegate any power and assign any duty conferred on him or her in terms of this Act or any other written law to a subordinate officer. Section 13 (1) describes the DPP's subordinates: Deputy Directors; Secretary of Prosecution Services; Prosecution Counsel; technical staff; and such other members of staff of the Office as may be appointed from time to time.

In my considered (and jaundiced view), the DPP's "subordinate officers" do not include the Commissioner-General of the Kenya Revenue Authority, the Commissioners responsible for administering the various taxes, of the other officers and staff of KRA. But I have been wrong in the past, so don't take this as cast-iron-solid legal advice.

So what do we do with section 107 of the Tax procedures Act, 2015? It says that despite any other written law, an authorised officer may appear in any court on behalf of the Commissioner in proceedings in which the Commissioner is a party and, subject to the direction of the Director of Public Prosecutions, that officer may prosecute a person accused of committing an offence under a tax law.

The words subject to the direction of the Director of Public Prosecutions, when seen in a certain light, would imply that the Commissioner or an authorised officer falls within the ambit of Article 157 (9) and section 22 (1) of the Office of the Director of Public prosecutions Act. That is, they are "subordinate officers" of the DPP.

That is manifestly wrong.

The Commissioner is appointed by the Board of Directors of KRA. Authorised officers are appointed by the Commissioner-General. No stretch of imagination makes them the DPP's subordinates; they are the Commissioner-General's subordinates. Consequently, the DPP cannot delegate powers to them at all. Not under Article 157 (9) or section 107 (1) of the Tax Procedures Act, 2015. In my considered view, Parliament was wrong. Parliament can rectify its error by deleting the words "subject to the direction of the Director of Public Prosecutions" from section 107 (1). This would bring section 107 (1) into conformity with Article 157 (12).

There's a principle that is enshrined in our common law: where a law is ambiguous, the benefit of that ambiguity is given to the accused person and not the State. Section 107 (1) is capable of being interpreted in two ways: that the DPP can direct KRA officials in their prosecution of tax cases or that the provisions of section 107 are ultra vires the constitution. That ambiguity is sufficient to benefit an accused person who challenges a prosecution by KRA on the basis that the prosecutorial power was wrongly (unconstitutionally) granted.

The other half of lawyering is admitting when one is wrong.

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