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‘Stepping aside’ not a matter of politics, tribal attack but law



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The concept of ‘stepping aside’ has been on our tongues since the purge on corruption began.

Even though it sounds more like a term used in a dance of musical chairs, it, in fact, has a legal basis. It is what is widely known as acting in ‘public interest’ or, in other words, known in the legal circles as acting within the public interest law.

Hence, when one is asked to step aside, it is done as a matter of public interest. It is challenging for the law, therefore, when political and tribal interests override a key principle of law in protecting the public from criminal behaviour of suspects of theft of public funds or any other serious crime.

In the minds of many Kenyans, there seems to be an overlap of the principle of ‘innocent till proven guilty’ and that of acting in ‘public interest’, which has led to many suspects of corruption wrongly heading back to their offices to await the outcomes of their cases.

However, this cannot, and should not, have been allowed to happen for the simple reason that those implicated are public servants appointed or elected to lead institutions that are governed by public law policies.

The incident of the alleged disappearance of data from the computer system at the National Land Commission (NLC) highlights the risk of leaning more towards the principle of ‘innocent till proven guilty’. It is, of course, a right that is enshrined not just in our Constitution, but also in international law to protect one’s human rights. However, it needs to be used interchangeably with the principle of ‘public interest’ in order to protect the public, especially if the alleged crime was heinous or poses a risk to the public’s interests.

‘Innocent till proven guilty’ must be applied objectively, all factors considered. It would be prudent to keep a suspect of serious crimes behind bars during the trial in order to protect the public from further harm. This would relate to cases such as murder, rape and genocide, to name a few. It is also crucial in case of theft of public funds to keep suspects away from their offices for smooth administration of justice.

In the current scenario, where we are fighting corruption, the right thing to do, by law, would be keep those implicated in the theft of public funds away from the offices where the alleged crime was committed. There is enough legislation in place, anyway to protect their interests to ease their return to work should they be proven innocent.

One key reason in law for acting in public interest is to prevent crime or further crime. It is foolhardy, therefore, to return corruption suspects to their offices — to continue to steal from where they left off before their cases are determined. To borrow the analogy from our African saying, what we are doing is letting a leopard carry on keeping sentry in a kraal full of goats despite it having killed a few already.

Why are we letting corruption suspects loose on the public despite the allegations of graft? A leopard, after all, as we know, can never change its spots.

The public interest principle can, of course, be invoked to raise issues in relation to ‘conflict of interest’, too, in a matter before court, or in protection of national security and public health.

Nothing undermines our way of life at the moment than the wanton and brazen theft of public funds. The more reason, therefore, to move away from looking at the problem of corruption as something that has nuances of politics or ethnicity, but which breaches public interest law.

Allegations of corruption, of course, bring the integrity of the said public servant into question and this makes their presence in the said post untenable. Integrity of public servants is clearly defined in Chapter 6 of the Constitution, under Leadership and Integrity. Continuous serving by the suspects of corruption or any other serious crime undermines the rule of law and the public’s confidence in our justice system.

Courts have a wide discretion on determining issues of public interest. It is, therefore, puzzling to see them accede to sending suspects of serious crimes back to their jobs. It is understandable that a balance must be struck between protecting the human rights of offenders and public interest.

It is easy to discern in relation to the fight against corruption that public interest must take precedence. It calls upon the integrity of the courts to react in a way that would instil confidence in issues that touch and concern the welfare of the public.

In practice, most junior staff in the government do get interdicted if they face corruption allegations. Allowing their seniors to carry on working despite facing similar charges is gross miscarriage of justice. The law must be served fairly and justly across the board all the time.