As the debate rages about taxes and tax evasion, Kenyan media should also illuminate the spotlight on the conduct of the Director of Public Prosecutions (DPP) Noordin Haji.
In the wake of the mass withdrawal of cases, we need to interrogate if he wilfully used a government office to run a partisan political agenda or if he was blindsided by the powers that be.
One element of a constitutional democracy over and above equality before the law is a predictable criminal justice system that is expeditious and fair.
You will all remember that when retired President Uhuru Kenyatta got the second term and he had demobilised NASA through the handshake, he embarked on two very ambitious programmes. First, the reclamation of the riparian land that saw the South End mall kiss the ground under the roar of tractors, and second, the war against corruption.
It's the latter that I want us to focus on today. Working in cahoots with the then Director of Criminal Investigations boss, we woke up every Saturday morning to news of arrests of the 'corrupt big fish'. It was a governor here, the head of a parastatal there, and or another big shot. Stories are told about how people would switch off their mobile phones on Thursday evening and drive out of town for fear of what was christened 'Kamata, Kamata Friday'.
The intention of those arrests was to humiliate the suspects and create a perception that they were guilty until proven innocent of course in contravention of the common law doctrine of the presumption of innocence. If that was not the case, why were the arrests made with media houses in tow? How did the journalists know that an arrest was due? The real issue now is that the bulk of these cases are now being dropped faster than the DPP can say, "The war against corruption".
It's noteworthy that the hitherto celebrity DPP has also disappeared from the public eye in comparison to the Kamata Kamata Friday era. The elephant in the room is, what happened with (to) our criminal justice system under Haji?
Did he drag people to court, destroying their careers and reputation in the process for political expediency? Was he investigating his matters in the media? What happened to his witnesses? Were they put in harm’s way or did they refuse to testify as a result? Or is it that there was neither a case worth the piece of paper on which the charges were drafted?
There is a reason why the office of the DPP was established under Chapter 15 of the Constitution of Kenya.
Allow me to take a brief walk down memory lane.
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Under the previous constitutional order, the prosecutor's powers were domiciled at the State Law office, superintended by the Attorney General, who was a presidential appointee. As Lord Acton, the 19th Century British Historian once observed, ‘power corrupts and absolute power corrupts absolutely’, so it became of the office of the Attorney General. Flimsy charges were brought against political opponents of the powers that be and the privilege of nolle prosequi was invoked anytime a friend of the system was brought before the courts.
To cure this, the framers of the Constitution of Kenya 2010, then removed the prosecutorial powers from the State Law Office and domiciled them in an independent office with the security of tenure. However, 12 years after the new constitutional dispensation, Kenyans are wondering what happened. Is independence enough? How independent is the independent office of the DPP?
If by any chance time and resources were expended to drag people to court without any basis or justification in fact and on the law, then people must bear personal responsibility to serve as a deterrence to other public officers now and in the future, who may want to commit the indiscretion of such fashion and magnitude. As young people like to say in the streets "ili iwe funzo".
We, the people of Kenya, must always remain vigilant in building a society and a country where, in the words of our National Anthem, "Justice be our shield and defender."
-Mr Kidi is a governance and policy expert. [email protected]