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Abuse of office over ‘abuse of office’ charges

COMMENTARY
By - | November 22nd 2012

By Edward Aboki Begi

NAIROBI, KENYA, Nov. 22 - A question we must ask is whether in the face of the clear and unambiguous provisions of the law of what amounts to abuse of office under section 46 as read together with section 48 of the Anti-corruption and Economic Crimes Act, it will be trite to hold accountable those investigators, crime readers and prosecutors who unnecessarily charge people for abuse of office over non compliance with internal regulations and memos?

In fact recent cases on abuse of office charge reminds me of the impunity of the past criminal justice where on the flimsy of the cases where the evidence was so weak as to sustain a conviction in a court of law, investigators could coin a charge of ‘being drunk and disorderly’ as a standard norm.

I cannot help but ask the questions again and again, aren’t these officers guilty of abuse of office charge for abusing their investigative, crime reading and prosecutorial powers?

I ask this question owing to a worrying trend in which our courts of law have poured cold water on the paucity of evidence on abuse of office charges finding their way to our corridors of justice bringing into question the capacity of our investigators, crime readers and prosecutors to bring justice to saboteurs of our economy whom the Anti-Corruption and Economic Crimes Act was meant to deal with.

A charge of abuse of office is normally brought under section 46 as read together with section 48 of the Anti-Corruption and Economic Crimes Act No. 3 of 2003.

To sustain a charge of abuse of office as defined under section 48 of the Anti-corruption and Economic Crimes Act, it must be demonstrated that there was improper use of a public office to confer a benefit.

It is also important to disclose the nature of the benefit conferred.

A charge of abuse of office must essentially entail all of the following ingredients namely; that an accused person is a state officer occupying a public office within the meaning of Article 260 of the Constitution of Kenya 2010, an accused must have used his/her office to confer a benefit and that the nature of the benefit must clearly be disclosed.

Before 2002, not many cases of abuse of office were finding their way to the courts of law. But after the enactment of the Anti-Corruption and Economic Crimes Act No. 3 of 2003 a number of these cases on abuse of office started having their way to the corridors of justice. This led the Court of Appeal to observe in the case of Republic -vs.- Hosea Waweru & Mwenda Guntai as follows;

“...the abuse of office charges though having been in the penal code for decades only started being filed in the courts after 2002. These charges create a new crop of hitherto uncommon offences and there are very few decides cases on them hence a dearth of authority. The purpose of the regulations is to promote economy and efficiency in the public procurement procedures and ensure that public procurement procedures are concluded in a fair, transparent and non-discriminatory manner thereby contributing towards the creation of sound business in Kenya”.

ill-advised

Whereas my brief in this article is not to applaud or castigate the learned Judge Nicholas Ombija in the manner he handled and analysed circumstances surrounding the prosecution of the Minister for industrialisation  Henry Kiprono Kosgey’s case, I must nevertheless applaud his bravery in exposing the weaknesses in our investigations and prosecutions systems.

No doubt the Director of Public Prosecution, Mr Keriako Tobiko, is a polished and accomplished legal mind but I must warn him that Kenyans are yearning for results in credible investigations on scandals that have dominated the collision government.

He must acquit himself from the perception that he is a political pawn and cautiously avoid falling prey to whimsical political considerations to powerful political forces, as therein lies the beginning of the fall of his shining legal career nutured for over two decades in private legal practice.

I cannot put it better but absolutely agree with the reasoning of the Justice Nicholas Ombija in the Henry Kiprono Kosgey case when he asserted as follows, “a breach of regulations (per se) does not equal to a commission of a criminal offence”.

In arriving at the reasoning the Justice Ombija quoted the Court of Appeal holding in the case of Republic vs. Hosea Waweru & Joram Mwenda Guntai and the Chief Magistrates, Nairobi Civil Appeal No. 228 of 2003; in which the Judges of the Court of Appeal held as follows, ‘any perceived criminal charges on the regulations would in most cases be ill-advised.’

Overall what must always pre-occupy the mind of any intelligent investigator and crime reader is the cardinal principal in criminal justice that an accused person is always guaranteed a right to be informed of the allegations he/she is to be charged with. This has now been embedded in our constitution in chapter four under the Bill of rights.

The writer is an advocate of the High Court of Kenya.

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