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We should follow Vietnam's example, punish embezzlers with death sentence

POLITICS
By Kutete Matimbai | October 3rd 2021

Hassan Gurach Wario Arero, the former Minister for Sports was recently convicted and fined for defrauding the country of millions of shillings at the Rio de Janeiro Olympics.

His Excellency Ambassador Hassan Wario was fined 3.6 million shillings or in default, to serve six years in jail. When the sentence was pronounced, an amused Wario coughed up the fine in three hours and swaggered out of the court like Hollywood icon Denzel Washington on Training Day. It didn’t feel right.

Punishment is the infliction of some kind of pain or loss upon a person for a misdeed. The punishment of wrong-doing is typically categorised in the following four justifications: retribution, deterrence, rehabilitation and incapacitation (societal protection).

Retributive justice is a theory of punishment that when an offender breaks the law, justice requires that they suffer in return, and that the response to a crime is proportional to the offence.

In criminal law, the principle of proportional justice is that punishment should be as severe as the severity of the crime. In practice, systems of law differ greatly on the application of this principle. But generally, punishment must involve something painful or otherwise difficult to endure.

Justice White in Coker v. Georgia ( USA 1977), laid out the rules for determining proportionality of a crime. This principle is meant to take care of what our PLO Lumumba would say, “You cannot respond to a mosquito bite with a hammer”. That a person should not be ‘overpunished’ for an offence.  Similarly, a criminal should not be ‘underpunished’. Considering the socio-economic reverberations of the fraud committed by this man, who was thoroughly vetted and appointed a Cabinet Secretary, after taking a solemn oath of fidelity to the law, the sentence handed to Wario is underpunishment.

For misappropriation of Kenyan taxpayers’ millions, for denying the charges in court and for subjecting us to further losses by dragging the trial to five years, the punishment handed down to Wario is grossly disproportionate to the crimes he committed. The punishment certainly does not contribute to the legitimate expectation and purpose of punishment.

Clearly, justice has been defeated in this case of Republic v Hassan Wario. To add insult to injury, the effortlessness with which the criminal paid the fine is not only contemptuous but scornful of our collective expectations as Kenyans. Either Wario had prior knowledge of what the magistrate had in store for him or our courts are so hopelessly predictable. Sh3.6 million is not money you walk around the streets with, unless you are Hassan Wario.

The State must seize the ‘right of appeal’ window to save face by lodging an appeal against this joke if we are to take the judiciary as a serious partner in the fight against grand sleaze. Meanwhile, the Judicial Service Commission should side-chat this trial magistrate and make Kenyans understand what informed this outrageous decision.

Embezzlement is punishable by death in Vietnam, provided, that the amount misappropriated is 500 million dong or more, or if it had “particularly serious” consequences. Bribery amounting to 300 million dong or more is also subject to the death penalty. Now, I am not remotely suggesting the guillotine for Wario and men like him. But a fine, if it is indeed to be considered as a punishment, should serve the purpose it was intended. The fine should be serious enough to deter those who think stealing from the public is fun and is without consequences.

In N. Korea, O Sang-hon, deputy minister for public security, and Chang Ung, a member of the International Olympic Committee, were sentenced to death and were in fact executed in 2014 over corruption charges. Something about Olympic there too…About the same time, around 50 officials were executed over charges ranging from corruption to “watching South Korean soap operas.”

It is not enough to punish a criminal, just because the law says so. A criminal must not just be punished but he must be seen to be undergoing punishment. As a matter of fact, the offender must feel punished. He must be seen to be suffering the consequences of his/her crime. In other words, the punishment imposed by court must be such an unpleasant experience to the convict to the extent that committing crime becomes manifestly unattractive to anyone else. That would be just and fair punishment for Wario and others who abuse public trust.

It is strange that after the Rio fiasco, and with an active criminal case against him, Mr Wario had so impressed top State honchos that they couldn’t wait to reward him by making him our top envoy to Austria.

Not long ago, John ‘Major’ Waluke, MP for Sirisia Constituency and Grace Wakhungu were each jailed for 67 years or a fine of Sh2 billion shillings for supplying air to the National Cereals and Produce Board. Such are the judgments that Kenyans should get used to. No doubt, the magistrate took into account the magnitude and ramifications of the offence on the economy when she imposed the punishment.

Although the two are out on bond pending their appeal, they no doubt are feeling the weight of their crimes and are now living one day at a time. Any time, they could be re-admitted at Kamiti and Lang’ata respectively, for a very, very long time. And in Indonesia, acts of corruption which affect the finance or economy of the country in a significant way, is punishable by death.

A person who is convicted of high profile corruption likely has the loot. Giving such an offender the option of a fine is just the icing on the cake. In exercising their discretion, courts should consider fines that are commensurate with the offence to discourage criminals sneering at our justice system, the Wario way. It is why Wario did not bother himself with an appeal against sentence or the fine; the fine was just what the doctor prescribed. It was child’s play and he shamed the system by paying Sh3.6 million cash in under 30 minutes.

Given that corruption and Corona are national pandemics, anyone who is convicted of embezzlement or abuse of office leading to loss of public money should be treated the same way as one who knowingly and willingly spreads the Covid -19 virus among Kenyans. Such a person is an enemy of the people and should be treated as such.

 

— Kutete-Matimbai is a lawyer and child protection officer based in Bungoma

Email: [email protected]

 

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