KACC’s record on prosecutions, convictions not bad

Aaron G Ringera

Our attention has been drawn to a January 13 editorial in The Standard calling for the strengthening of the Kenya Anti-Corruption Commission’s investigative capacity and noting high profile cases currently undergoing investigation.

While not exhaustive, it was an attempt at an objective analysis of the constraints facing KACC in the fight against graft. However, it appears to have been based on erroneous facts which need clarification.

First, it gave the impression KACC has been in operation since 2003. Although the Anti-Corruption and Economic Crimes Act came into effect on May 2, 2003, KACC was established in September 2004 and the first batch of employees recruited in early 2005.

KACC’s role is to carry out impartial investigations and forward its recommendations, based on the evaluation of the evidence, to the Attorney General. As the office constitutionally empowered to institute and undertake prosecutions on behalf of the Republic, the AG’s office re-evaluates these and makes directions on whether there is sufficient evidence to warrant a prosecution. In the four years since inception, KACC has sent the AG 456 files and recommended prosecution in 338 cases. His office has agreed with KACC on 290 files (an 85.8 per cent concurrence rate) and only rejected 17. Another 33 files were referred for further investigations or await the AG’s advice. The claim that half the cases forwarded to the AG’s Chambers are not deemed worth pursuing is, therefore, incorrect.

DISPOSAL RATE

The assertion that only one in four cases KACC has filed during the period ended in a conviction is also not factual, in so far as it was not contextualised. Since 2003, 435 prosecutions have arisen from investigations by KACC. There have, so far, been 60 convictions, 69 acquittals and 70 discharges under sections 87(a), 82(1) and 89(5) of the Criminal Procedure Code. Another 236 cases are still pending in court.

It is clear the number of cases filed is not commensurate with the disposal rate in court, granted that the bulk of the cases are still pending determination. Hence, it would be misleading to talk of any meaningful ratio.

Additionally, constraints of capacity in the Judiciary and in the Prosecution Department as well as delays occasioned by defence counsels continue to impact negatively on the expeditious disposal of corruption cases. For instance, while the Anti-Corruption and Economic Crimes Act provides for the hearing of corruption and economic crimes cases on a day-to-day basis, the Judiciary is unable to enforce this requirement.

Constitutional and judicial review challenges mainly filed in the High Court by the so-called prominent personalities frustrate efforts to expedite cases as they continue to hide behind court injunctions that take lengthy processes to dispose of. Accordingly, gauging KACC’s success on the basis of concluded matters is inaccurate.

In the same vein, of the 70 discharges reflected in our statistics, it is vital to note that a large fraction is attributable to the repeal of the Prevention of Corruption Act (Cap 65) as opposed to the insufficiency of evidence. Most of these cases were reinstituted after the High Court ruled on the correct interpretation of the effect of the repeal. They remain pending in court. Other terminations were necessary for a range of reasons — death, re-location, threats and so on — involving key witnesses. Again, this is irrespective of the sufficiency of evidence.

KACC receives thousands of complaints, all of which it sieves through to determine whether they may be worth following. Last year, we got 4,844 complaints. For an organisation with a staff capacity of 270, only 59 of whom are investigators, this is a monumental task. That notwithstanding, KACC has continued to challenge itself with demanding goals.

While it is the duty of the Press and the public to critique the Commission and hold it accountable, it would be expected that such criticism be based on accurate facts. KACC is open, ready and willing to provide any information to any party interested at any time in verifying the correct position of matters within our mandate.

Justice (Rtd) Ringera is Director and Chief Executive of KACC.