Major rethink needed to end the circus of botched prosecutions

Former Treasury CS Henry Rotich (center)  and nine other co-accused walked out of Milimani Court after they were acquitted in Sh63 billion money meant for the construction of the Kimwarer and Arror multi-purpose dams on December 14, 2023. [Collins Kweyu, Standard]

This week saw the acquittal of former Treasury Cabinet Secretary Henry Rotich from the Arror and Kimwarer dams-related charges. While releasing the former CS, the presiding magistrate made some disparaging comments about the conduct of the Office of the Director of Public Prosecutions indicating that the office had been complicit in the case’s collapse.

These averments by the magistrate bring to the fore what anyone who has been involved in criminal prosecutions on high-profile matters knows: it is near impossible to obtain convictions. For the avoidance of doubt, I do not seek to adjudge Rotich guilty. The court acquitted him and in the eyes of the law he is innocent. The discussion is not about his specific case but the wider issue of the prosecution of high profile, particularly corruption cases.

In the last three years there have been numerous people charged with corruption. Most cases start with much theatre and drama, complete with night-time arrests, speeding cars traversing the country, police officers armed to the teeth, and severe-looking lawyers. The drama, however, tapers off once the matter gets to court and the humdrum of court proceedings start.

Even where the prosecution is determined to obtain a conviction, from the moment a case gets to court, the prosecution is just one of the players in a complex matrix in which money is a principal player and intrigue, deception and scheming are the order of the day. Criminal cases are tough to prosecute generally. All facts must be proven, and the proof must be beyond reasonable doubt. Documents must be produced in their original except in special circumstances. Every allegation must be supported by a witness and documents. Add to this the complexity of corruption cases. To that mix, add a coterie of experienced lawyers who know the vulnerabilities of the prosecutorial process. To its credit, the DPP’s office now boasts of well-trained and skillful lawyers. Most are, however, no match for what the private bar can provide.

There also other tools that the experienced lawyer, especially one who knows their client is guilty or may be convicted for whatever reason, has at their disposal. The main one is delay, delay, and delay. The more time passes, the more witnesses get exhausted and frustrated. Presiding magistrates get tired of the case. Prosecuting counsel lose focus as their attention is divided between this and many other cases. Governments change and because many corruption cases have a political angle, the vigour towards pursuing the suspects can ebb. Hence delay is always an ally of a suspect who sees a conviction possibility.

The other vulnerability of criminal prosecutions is the large number of people who handle the specific cases, especially those that go on for long. As files traverse the bureaucracy through the years, documents are misplaced or are disappeared. Witnesses are also disappeared or discouraged from appearing either through threat or gift. The public gets distracted and the initial interest and demand for conviction wears off. Eventually the expected happens, an acquittal.

Does that mean government should stop such prosecutions? By all means no. What needs to change is the philosophy that informs why we prosecute for corruption. It can no longer be about getting everyone suspected of corruption before a court of law. As an assault on corruption, it should be about deterrence, targeting those charged but more importantly, the hordes deciding whether to engage in graft. To send the required message, the cases must end with convictions.

Several things are then critical. Only a few cases should be taken to court-the ones with incontrovertible evidence, not the jokes that EACC sometimes throws to the DPP. The officers who prosecute them would need to be the best in the team. They would need to be spared of all other responsibilities when these cases are ongoing. When cases are few, witnesses and evidence are easier to protect. Courts would reject delays and convictions would be easier. The current process is only good for initial headlines, but cases inevitably collapse to the chagrin of the public who become increasingly pessimistic about the seriousness of government in prosecuting corruption. There are better ways, but they require a fundamental rethink. Over to the DPP.

The writer is an advocate of the High Court