Wednesday, October 19, 2016

All about process

The court is the last stage before a person, accused of an offence, is convicted and sentenced or acquitted and set at liberty. The process begins when a person is accused of having committed an offence as defined by an Act of Parliament. Yesterday key actors in the war on corruption presented themselves at State House, Nairobi, and spent the hours between 7 a.m. and the lunchtime news broadcast at 1 p.m. passing the buck like it was a hot potato in their hands.

The chief executive of the Ethics and Anti-corruption Commission said that it doesn't prosecute or jail corruption suspects; the Director of Public Prosecutions said that he could only approach the courts if the evidence and witnesses were provided by the police; the Director of Criminal Investigations said that the police mostly receive allegations that cannot stand in court and that the police do their part while others don't; and the Attorney-General hilariously blamed the judiciary for stalling cases through "dubious" injunctions.

The process always begins with an accusation or allegation. It can be made to the police, the Ethics and Anti-corruption Commission, the Office of the Director of Public Prosecutions or the Office of the Attorney-General. The accusation must always be founded on a keen reading of the relevant provision of the law. In any case, it is the police that shall investigate, gather evidence, interview witnesses and present its report to the Director of Public Prosecutions.

The DPP will review the case file. If the DPP believes that an offence has been committed and that the evidence and witness statements support that belief, the DPP will approach the courts and charge the suspected offender with the offence. The police investigation and the DPP's review of the case file are the cornerstones of the process of trying corruption offences. If the investigation is flawed or if the DPP's review is defective, the trail may only lead to one outcome: the acquittal of the accused.

Contrary to what the A-G believes, injunctions are not an inconvenience that can be wished away simply because they appear to be of dubious character; they are provided for in the law. It is not for the accused to give an inch when accused of an offence; it is for the DPP and the police to mount the most robust case and to challenge every application for an injunction with clarity and vigour.  That they have proven incapable or unwilling to do their part in corruption case after corruption case is not the fault of magistrates or judges. Unless the A-G can show that the injunctions granted by the courts had no foundation in the law, the declaration that they are "dubious" raises questions of its own about the role of the A-G in these fraught prosecutions.

The courts will issues injunctions and preside over trials based n the provisions of law and evidence adduced. Lazy judges or magistrates who allow their faith in Jesus or their cultural values to interfere with the proper interpretation of the law or assessment of evidence should be shown the door; they can teach penmanship or grammar some place other than on the Bench. There is a reason why the doctrine of separation of powers is gaining currency in Kenya; no one wants a repeat of the Moi era where the courts and the A-G were the president's lackeys and the rule of law was a cute legal doctrine law students were taught to forget as soon as they were called to the Bar. The A-G can criticise genuinely unwarranted injunctions but the only way he can prevail before judges or magistrates is by presenting a better case. Can he? Can the DPP? Will the police ever? You guess is as good as mine.

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