Weaponization, especially in international relations literature, is a range of interventions deployed often by powerful States to coerce compliance or effect behavioural change through a regime of punishments or incentives. Sanctions and limiting access to financial services to non-complying entities or persons are some good examples.
Claims that the war on corruption has been weaponized to achieve pre-determined and selective outcomes have raged since Noordin Haji’s appointment as the Director of Public Prosecution in August 2018.
Less than five months in office, Haji has waged a high-profile campaign to arrest and prosecute prominent government officials suspected of involvement in graft.
Given the insidious nature and havoc wrought upon Kenya’s social-economic and political fabric by grand corruption; a robust no-nonsense, non-discriminatory anti-corruption campaign waged by Haji is highly celebrated by many Kenyans from across the political divide.
For many, corruption must be slayed by all means necessary. No price is deemed too high, so long as the result is to eliminate the pernicious influence of corruption on public sector programmes and procurement related decisions.
With this overwhelming public support, the DPP has been more emboldened to pursue a gung ho and gunslinger approach to corruption-related-prosecutions. #Nothingcanstopreggae trends on Kenya’s twitter sphere every time Haji has directed an arrest of a high-profile suspect.
While Friday arrests have become common and trendy, the twitterati wait in anticipation for swops in a manner not too dissimilar to how Roman crowds celebrated executions at an ancient colosseum.
The chorus of public support in his favour and denunciation against any arrested suspect has inevitably encouraged the DPP to adopt a risk-loving approach to prosecution of corruption cases.
Without criticism that would ordinarily constrain institutional conduct, disproportionate action becomes an ever-looming possibility.This is precisely the moral hazard peril that the DPP must guard against. As in insurance law, a moral hazard problem arises when one who is indemnified from the consequences of risk, increases his exposure to risky conduct in the knowledge that any costs arising from such action will be borne by a third party.
Based on this view, in case of the DPP present focus, the massive public support coupled with the legal indemnity against negligent prosecutorial decisions, provides cushion for DPP’s current strategy.
Unfortunately, the ethical and legal consequences occasioned by a risk-inviting prosecutorial strategy are too numerous to outline.
Two examples will suffice. First, wanton arrests unsupported by thorough and complete investigations leading to conclusive evidentiary basis for the founding of a charge expose several citizens to prejudiced prosecutions.
The disruption caused upon the personal, familial and professional life of anyone subject to criminal proceedings especially in the nature of economic crimes is unquantifiable but substantial. As such, a number of people become collateral damage in the war against corruption, so long as the anti-corruption swop nets one high value suspect.
Further, risk-loving prosecutions appear designed to exact maximum disadvantage to suspects and criminal defendants. Of greatest concern is the risk this poses to constitutionally entrenched fundamental freedoms and rights of suspects which appear to be trumped whenever economic crimes are implicated.
The assault on the right to bail and privacy, evident in ongoing prosecutions is a trend that is difficult to reconcile with our progressive constitutional order.
In the end, the success of any anti-corruption campaign will be judged not by the number of choreographed high-profile arrests, but by the successful prosecution of high value suspects and verdicts of guilt entered. The moral high ground occupied by the DPP presently must not be desecrated by hasty publicity seeking arrests and stunts.
The probity of investigatory processes, and the protection of fundamental freedoms in the entire prosecutorial chain, are the sure anchors that will lend sustainability to the cause and secure true reconstruction of our nation into a more ethical society.
Mr Sing’Oei is a Legal Advisor, DP’s Office (views are personal)