Many like me who were skeptical about the Director of Public Prosecutions (DPP) upon his appointment, have been pleasantly surprised. Having never heard of the man in the court corridors, we assumed he was just another people pleaser appointed to balance out Kenya’s political and other dynamics. That skepticism seems like a life time ago. Noordin Haji has been a phenomenon going to places hitherto considered unreachable. He has been the cause of sleepless nights for many public servants.
The joke in town is that anyone who has been prejudicially mentioned in relation to corruption leaves their house on Friday and returns on Monday, and only after confirming that the coast is clear! Most Kenyans, realising that corruption was bringing the country to its knees, wish him well and pray for his success. But the DPP must not assume this is going to be a walk in the park.
Appeasing the public
The integration of corruption in every part of our body politic means corruption is worse than stage 4 cancer.
The wrong management of the disease could kill the patient. In this regard there are areas where the DPP and the other agencies involved in this war need to be careful about. Firstly, they must be wary of appeasing the public’s love of blood and gore. One is not asking for kid’s gloves in the treatment of suspects but the scenes of a mother being arrested in a hotel leaving her infant children behind on a Saturday, the locking of accused persons over the weekend without bond, delays of bail hearings and similar acts may excite the public, but the excitement is short-lived. The public will increasingly demand more and at some point, the focus on the drama will become more important than the substance of the fight.
Secondly, we may hate the rights granted by the Constitution, but this war will not be won if we trash the rule of law. Bail and the presumption of innocence are constitutional rights. By all means, make bail terms tough so there is no risk of people absconding court, but refusal of bail must never be used a partial punishment for suspects. Thirdly, the DPP team must not presume he will get convictions. Most of the lawyers I have seen representing corruption suspects are some of our best brains. The courts owe the government nothing, other than the right to hear the prosecution. Anything short of intensive professional investigation and the presentation of convincing evidence will lead to cases being thrown out. Blaming the courts for acquittals after shoddy prosecutions will not do. The public who have been cheering the arrests will suddenly believe it was all drama, more so if the arrests were accompanied by unnecessary razzmatazz. Which brings me to my next proposal.
In this first batch of prosecutions, the DPP must not clog the courts with cases that are principally about procurement irregularities and which the prosecution has historically tended to lose. The focus must be on outright corruption based fraud. There are many cases where people were paid for goods that were never delivered. There are people compensated for land they did not own.
There are people who used the IFMIS platform to illegally obtain payments from the public purse. These are cases that are easy to win and will restore faith in the system. Once sufficient confidence has been restored, the DPP can then deal with procedural irregularities cases, and even there are many solutions available in such situations other than prosecutions.
Fourthly, the war must be seen to be non-partisan. If at any point it appears that the intention is to settle political or other scores the very public that this was done to benefit will lose faith. Finally, let us accept that as a nation we have sunk very low in the corruption mire and that our ethical foundations are no more.
Curing this malady requires a lot more than prosecutions. Rebuilding our ethical foundations must be the continual focus of governmental and non-governmental institutions and indeed all Kenyans. Only then can we reclaim our place in the table of Great Nations.
- The writer is an Advocate of the High Court of Kenya