Prosecution intentionally dropped the ball in Arror, Kimwarer case


The “prosecutor-orchestrated acquittal” of the former Treasury Cabinet Secretary and eight others is a travesty of justice, as the chief magistrate of the anti-corruption court concluded.

It not only made a mockery of the Judiciary, wasted valuable judicial time, but also lost billions of shillings for Kenyans, another financial scandal. It is also a great shame that the accused persons did not get an opportunity to defend themselves and to clear their names.

How can they even celebrate their acquittal under such a cloud of doubt visited on them by the conduct and omission by the prosecution? Perhaps, they would have won the case, or maybe not, we will never know. What is clear is that, from the statements of the chief magistrate, the prosecution’s dereliction of duty by failing to question/lead 41 out of 49 witnesses that they had earlier assembled to support their case, is a terrible blight on the accused persons’ reputation. It will be difficult to believe that they are innocent given the statement by the court.

The shameful failure of the prosecution to meet their obligations and their making a mockery of the anti-corruption court is indicative of a prosecution that is not independent and impartial. The chief magistrate told us the prosecution acted on ‘instructions’ to defeat its case so as to assuage someone high up. They failed in their constitutional and legal obligations to safeguard and protect our resources and interests. This raises many questions and serious concerns. Who gave the instructions? Is this the new normal?

Corruption and bad governance have reached pandemic levels and we seem to be deliberately losing every opportunity to address them. It is hard to believe the words of our leaders when they declare war on corruption yet their actions are farthest from it. We have seen many cases of corruption going without proper investigations and prosecution while the enthusiasm of the same officers to ‘charge’ and ‘investigate’ others borders on an orchestrated witch-hunt reminiscent of the days when ‘suspects’ would be arrested/abducted in Nairobi, driven overnight to a far-off town and charged at night!

We never thought those dark days would be with us especially after granting ourselves a Constitution that we believed, if properly implemented, can give us the Kenya we want. The levels of impunity we are witnessing from those obligated to protect and safeguard our interests and to protect the Constitution are alarming. The Judiciary has in the recent past made judgments and pronouncements that have generally been ignored, though selectively. We are witnessing unprecedented and blatant violations of the Constitution. Parliament has not been very helpful in its oversight role, either. It appears to be eager to pass laws that contravene the Constitution or aim to amend it through the back door without batting an eye. The fear of the voter is no longer a deterrent to MPs and elected leaders.

The government’s threats/promises to impose various taxes and levies, including the proposed compulsory Universal Health Coverage levy, without taking into consideration the views of the public manifests insensitivity and lack of responsiveness. The Constitution provides for the supremacy of the citizen and the obligation of their involvement in governance and decision-making through public participation and referendum. Yet, even in the cases where public participation is conducted, the views of the majority seem to be ignored. The majority of Kenyans, especially those whose payslips are becoming longer because of tax deductions, are suffering silently and are becoming desperate. Our leaders are in the category of salaried Kenyans who are benefiting from pay rises and tax rebates and are well remunerated to feel the pinch.

The drop in fuel prices this week is a starting point, though we need more reductions on VAT and removal of the housing levy. Additional levies and taxes will overburden Kenyans further and may become counter-productive. The less we earn only demotivates thereby making us less productive. Many Kenyans are barely surviving and are losing hope with every new demand from a government that appears to have a big spending appetite for things they don’t consider to be a priority. All these social media jokes about additional taxes and levies on domestic animals and NTSA are not funny.

The writer is a democracy and elections expert. She works for South Eastern Kenya University (SEKU) Kwa Vonza in Kitui County.