Tuesday, May 24, 2022

Don't hanker for the good old days

The law is a weapon. No one should be in doubt that even when the law is affirming the existence of a right or fundamental freedom - or prescribing the penalties for violating that right or fundamental freedom - the law is a weapon. Sometimes it's a cudgel. Sometimes it's a scalpel. But make no mistake, when the law is deployed, it is deployed as a weapon. In the form it takes regarding taxes, the law is a very formidable and deadly weapon and it takes a person of great personal will, determination and wealth to stop the law in its tracks.

For the law to function well as a weapon, those who deploy it must understand it, use it dispassionately and not allow the immense power they wield to get away from them in reckless and unwise adventures. Mr. Humphrey Kariuki, a billionaire businessman, fought the law and for once, the law did not win. It may yet do so on appeal, but no one is confident that the other superior courts will grant Mr. Kariuki's accusers the kind of power they were seeking to begin with.

It is not clear what Mr. Kariuki did to attract the attentions of the taxman or why the taxman, the police and the public prosecutor were so keen to skirt the finer points of the constitution when they brought overwhelming force to bear on Mr. Kariuki. The seemingly tailor-made legal framework that permitted the taxman and the police to investigate Mr. Kariuki for various tax offences and to prosecute him as well has come a cropper thanks to the High Court. Mr. Mrima, J, disagrees with the manner in which the DPP's powers were delegated to KRA and the National Police Service, declaring the legal framework ultra vires the constitution. I'm not sure the other superior courts will agree; after all, Article 157 (12) says that parliament may enact legislation conferring powers of prosecution on authorities other than the DPP and, to my mind, other authorities rightfully include investigative authorities like KRA, the Police, EACC and the like.

In my opinion, it is the seemingly motivated nature of Mr. Kariuki's prosecution that may have persuaded the High Court to declare that investigative bodies cannot both investigate and prosecute. I tend to agree. Many seem to have forgotten the unhealthy outcomes of police prosecutions from the 1970s and 1980s that transformed relatively straightforward criminal prosecutions into life-damaging convictions. What may have resulted in a fine or a short custodial sentence, ended up being years of to-ing and fro-ing in court, huge legal bills and years behind bars. No one should hanker for the good old prosecutorial days. Maybe the Court of Appeal will agree with Mr. Mrima, J. Hope, after all, springs eternal.

Kenya is taking incremental steps towards greater individual freedoms. In prosecution, though the risk of empire building is great, investigative bodies should not be granted prosecutorial powers. Knowing what we know about how the law is often used for selfish, personal or political ends, allowing the investigator to make the decision on whether or not to prosecute is a recipe for grand corruption and abuse of office. We can empower Mr. Haji and his successors while enhancing oversight of the exercise of their prosecutorial powers. But it does not make sense for Hilary Mutyambai and the rest of the National Police Service to take time investigating crimes to engage in the complex legal work of criminal prosecutions. In this case, each should stick to his lane and be happy doing so.

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