Graft war should focus on objectives, not need to prosecute all culprits

The arrest and production in the corruption court of our “Chancellor of the Exchequer” among other public servants defined a new dimension in the yearlong accelerated fight against graft. The Treasury Cabinet Secretary is not just any other minister. In terms of hierarchy of responsibilities, only the Cabinet Secretary in charge of internal security comes close.

In many jurisdictions, the minister responsible for finance is so revered that a mere statement from him, leave alone an arrest, can change the fortunes of an economy. In Kenya, this is the person who negotiates and signs international financing contracts for the government. He is the face of the country to many of our international friends and development partners. Locally, he is the person who regularly makes decisions on when and who will be funded, and for how much, which ministry, department or even a specific contractor is to be supported financially and otherwise.

Many years ago, I had an early morning meeting with the Treasury Principal Secretary. When I checked into his office at 5.30am, I was shocked to find four ministers in the waiting room queuing to see someone who theoretically was their junior! I paint this picture to affirm how momentous and disturbing seeing Cabinet Secretary Henry Rotich in the corruption court was. No wonder, all international news broadcasts including CNN and BBC carried the story as breaking news.

Of course, every Kenyan, except beneficiaries of graft, wants the fight against corruption to succeed. We have paid too heavy a price for the many years we allowed this monster to grow. We want no sacred cows in this war.

Without ascribing guilt, the arrest of the Treasury team sends a message that there are no sacred cows.

It is, however, because of the hope that such a message sends that it is essential that we get it right. There are certain minimums necessary to continue to feed hope on the citizenry in this process.

Firstly, all arrests and prosecutions must be based on unequivocal evidence of graft. I dare suggest that prosecutions, especially of such senior officers, should as far as is possible connect the acts complained about with evidence of benefit. We want direct evidence, not mere suspicion, that a minister received the proceeds of graft.

It would be unfortunate if prosecutions for graft were primarily concerned with administrative misdeeds, which though falling foul of the penal code, do not tell us that the officer complained of was a graft beneficiary. I say this knowing that convicting for such administrative misdeeds is hard and we may end up with convictions whose penalty is merely surcharges. Of course graft, especially the receipt of proceeds, is a tough offence to get concrete evidence on.

But the season we are in is so critical that maintaining public support for the war on graft requires that we would rather have no prosecutions than have prosecutions that elicit no results because they were either shoddily investigated or focused or mere administrative indiscretions, even if we suspect that such indiscretions had some incentive. I have no doubt that Taib Ali Taib, the private prosecutor chosen by the DPP, has the capacity to execute a meticulous prosecution but it must be remembered that he will only go as far as the investigations have gone.

At another level, the DPP must always make a strategic decision on how many people to prosecute. As I have argued before, our system is so tainted with graft that attempts to prosecute everyone in the corruption pipe will unduly weigh down the system and eventually collapse it.

A more effective strategy would be to carefully target the most heinous actors in the graft scheme and leave others to administrative processes or use them as witnesses. Of course, there is some injustice in such decisions, but this is a war and we must keep our focus on the broader objectives, not the need to prosecute every single culprit. We all support the DPP’s efforts in this war, but this support will collapse “hugely,” if he does not deliver on his promises and our expectations.

- The writer is an Advocate of the High Court of Kenya