To say that the president’s State of the Nation address was a disappointment is an understatement. Many had been demanding, and expected blood. Fire several Cabinet Secretaries. Better still, dissolve the whole Cabinet. Hurl several Cabinet Secretaries before Magistrate Ogoti for the Sh100 million bail. Name corrupt governors and demand they go home. If only governing was so simple. We so easily forget that about ten years ago, we chose the route of a constitutional democracy. We passed a Constitution that evolved us from a government primarily by a man’s whims, however well-intentioned they may be, to a government run by the rule of law.
After many years of experience with imperial presidents who hardly cared about our welfare, we opted for a checked and accountable presidency. In our hearts however, we long for a strong man who can take away all our problems with the wave of a band. That is why we celebrate when people are woken up on Friday night, charged with much pomp on Monday and denied bail. We do not care if a few laws are broken as long as those who have stolen from us are punished. We need to wake up. The choice we made comes at a price.
The extensive human rights protections that the Constitution gives are supposed to ensure that a powerful State never misuses its powers to punish its innocent opponents. But the other side of that coin is that powerful people will abuse the law and still hide under its protections. The provision that one is innocent until proven guilty ensures that the State, which has the monopoly over prosecution, will not by the single act of taking you before a court deem you guilty and start the punishment regime. But to be effective, that protection must also cover the vilest offender. The requirement that all trials must be accompanied by compelling evidence, the requirement that you cannot be sacked until a legitimate tribunal finds you culpable has the same intention. But it has the corresponding capacity for negative impact.
The president has no luxury of suspending constitutional protections so that he can meet popular objectives. If he went that way, those lambasting him would be at the High Court stopping him. So, as a matter of the Constitution, the president is right. There cannot be a successful fight against corruption based on vigilante justice. He cannot sack people based on media allegations. But is the president powerless? No, and he has shown it in part.
Since his “what do you expect me to do” speech several years ago, the president has used tools at his disposal, without changing even a comma in the law. He has appointed effective officers at the DPP and DCI and we hope at the EACC. He has ensured that they are properly resourced. He has given the political support that is needed to engage in an anti-corruption drive. These officers now need to deliver as per the Constitution. They must be strategic, prosecuting cases only where the evidence is incontrovertible, even if they are few. They will send the necessary message. There is no time for histrionics, stage-shows and endless threats.
The DPP and DCI are civil servants, they must speak less and do more, leaving the business of threats and promises to politicians. The president can also do more administratively. He can use the wealth declaration as the basis to collect information through the intelligence services to establish who is hiding what where. This can be the basis of asset recovery. Finally, the public demanding the president spills blood must itself spill blood at elections.
My friend Steve Ogolla says corruption will be defeated at the ballot. Until we react against corruption that it becomes the most significant determinant of who we vote for, we are just being hypocritical, complaining about corruption because we cannot access it. So, Mr President, while I was disappointed by the lack of blood, I totally appreciate that you live in the real world, where we are still bound by the rule of law.
- The writer is an Advocate of the High Court of Kenya. [email protected]
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