Rich and powerful suspects are using the Judiciary to evade justice, top officials leading the fight against corruption have said.
In a candid discussion on the state of the anti-graft war, the Director of Criminal Investigations (DCI) and the Director of Public Prosecutions (DPP) said lenient bail and court orders were the weak links in the fight.
The two spoke yesterday during a panel discussion at the National Anti-Corruption Conference held at Bomas of Kenya. The two-day meeting ends today.
DCI boss George Kinoti spoke of “strange orders” from the courts that prevented the arrest of certain powerful suspects against whom investigators had uncovered evidence.
DPP Noordin Haji said some court orders favoured rich people charged with graft, including lenient bail terms that allowed them back to their powerful offices, exposing witnesses to intimidation.
The DPP vowed to take the fight to the Supreme Court to ensure suspects facing graft charges stepped aside.
Mr Kinoti said that despite having concrete evidence against some individuals, some court orders had effectively prevented him from questioning or recording statements from the suspects.
“Some of the frustrations that pull us down are some strange orders we receive. We are stopped even before we record a statement from somebody whom we know very well has stolen from Kenyans and all Kenyans know we have pursued this person.”
He said he had evidence to prove that he had been stopped from questioning certain people.
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He explained that he was recently in the process of pursuing a top official suspected to be involved in graft when he received “pre-emptive orders” to drop the investigations.
“We all know and evidence can show we are stopped from questioning certain people.”
Kinoti referred to one suspect, Mr A, and said that he had been told not to use the “door” to arrest them.
“But I found a ‘window’ which was the smoking gun but was ordered not dare touch that person.
“When the orders came, I read them very well: ‘`Do not use the door to go and arrest Mr A.’ I sat down and consulted with my legal advisers, then I said there is a window if I cannot use the door to arrest Mr A, I can use the window.
“When we bring the smoking gun then we are told: ‘Do not even dare touch that person’.”
Kinoti said thieves of public funds were “no better than terrorists”.
“When you steal hospital and development money what do you think you are? You are no better than that terrorist,” the DCI boss said.
He compared the current war on corruption to Italy’s fight against the Mafia.
“The war (on the Mafia) was won after the people’s outcry, by the coordination between the police, prosecution and judiciary.”
He assured Kenyans that he would not despair in the war against corruption.
“We are doing our best as far as investigations are concerned. There are challenges, but these have not reached the point of discouraging us.”
Mr Haji dismissed the narrative that his office was “overzealous”, leading to the collapse of cases.
“What do people expect us to be? It is an unfair criticism to us. Some people even have a mindset that any investigation that comes is poorly done.
“When we go to court we have the evidence, but there are things that we are asked to disclose because the Constitution says you must give the accused evidence you have against them.”
Haji complained that the legal system favoured the rich in the war against corruption.
“Why can’t everyone be treated the same, mwananchi na walioiba (ordinary Kenyans and those who stole)?
“Umeiba mabillioni alafu sisi serikali tunaambiwa tulipe sisi (You have stolen billions and then the Government is asked to pay for it because the Constitution says so). This Constitution only serves those who steal.”
The DPP said his office, the DCI and the Ethics and Anti-Corruption Commission (EACC) were spending a lot of money on corruption cases, only to have the suspects released on lenient bails.
“We ask ourselves should this money be spent on investigations or to printing materials for suspects?
“So, in the long run, we go to court and we say: ‘Give us time to get funds,’ for example, but the defence and cartels tell us: ‘You don’t know your job.’ Is that fair criticism?”
Haji called for a level playing field in court battles against corruption.
“We are asking that the playing field be levelled for everyone. It can’t be that the thieves get preferential treatment.”
Haji said he would go to the Supreme Court to ask for a ruling that all suspects charged with graft step aside.
“I have been fighting to ask the people that we’ve charged to step aside. That is in the Constitution and we will go up to the Supreme Court if we have to get that ruling.”
He further complained about the numerous court orders granted in corruption-related cases.
“It has reached a point where we are given fake documents. It is not right. We will fight until we get justice and equality.”
The DPP also pointed out the challenges the prosecution was facing in cases involving top county officials, accusing some governors of intimidating witnesses, including sacking those who worked under them.
Attorney General Paul Kihara agreed with the DCI and the DPP that some court orders were negatively impacting the prosecution of graft cases.
“Court orders that prevent arrest, investigation and prosecution of cases also present a challenge because such orders do not allow the presentation of evidence for determination on evidence.”
Justice Kihara also faulted courts for allowing graft suspects to return to work, especially in high-level cases, saying this risked compromising investigations, evidence and prosecution.
“A greater challenge that we now face and are experiencing are judgements of the courts that allow the return to office of persons charged with corruption.”
The conference was organised by the Multisectoral Initiative Against Corruption.
The initiative, which was formed last year, includes various sectors to develop strategies to combat corruption.
It attracted 2,500 delegates and will see both the public and private sectors commit to implementing a four-year action plan to fight corruption.
“For each of the strategies reported we will ensure that they are implemented. We will also measure and monitor their progress,” said Lee Karuri, a co-convener of the conference.