Treasury secretary Henry Rotich’s decision to change the law and allow Kenya Revenue Authority (KRA) officials to raid businesses and homes for evidence needed to nail tax cheats would, on the face of it look rational and desirable.
What with the thousands of citizens who are inclined to do everything not only to escape paying their fair share of taxes, but also to cover up their crime by hiding documents or other forms of evidence needed to successfully prosecute tax cases.
Yet a deeper look into the change in law does raise a number of pertinent issues worth considering. First, searches of business or private premises for purposes of collecting evidence required to prosecute suspected criminals have always been done with the backing of court orders – or legal instruments known as search warrants.
Such warrants are specifically granted to a law enforcement agency or officer and are part of the reason KRA officials have traditionally been accompanied by police officers while undertaking such missions. Police officers also offer the taxmen critical protection while on potentially dangerous assignments such as conducting searches in private premises. Then there is the whole remit of criminal procedure that demands – among other things – that the function of investigating a crime is separated from prosecution. Lawyers have already warned that amending the law to give the taxman the authority to investigate and prosecute tax crimes would pose legal challenges.
This is because tax offences that require extreme actions such as intrusive searches of premises for evidence are of criminal nature and will have to be prosecuted under the right procedures. Tax matters are understandably complex and given the high targets being set every year for KRA, it may have been sensible for the Treasury to try and strengthen the position of tax officials pursuing cheats.
We must, however, warn that though the taxman may be happy going it alone in the investigations – having accused the police of bungling cases in the past — he may soon find the going much harder as the legality of his actions are challenged. This is a classic case of balancing what is desirable and convenient against what is right and legally sound.