Strengthen, modernise the Judiciary to scale up fight against corruption

There are two court cases that the public will closely watch in the coming weeks and months: That of Messers Rotich, Thugge, Kimosop and Co., and that of Mr Ferdinand Waititu.

The former is a much more complicated matter involving large transfers of money to an Italian company and arguably some of the money has travelled around the world. The money in Waititu’s case is also stunningly large when one bears in mind this involves only one county government.

The former is being led by the Director of Public Prosecutions Noordin Haji whilst the latter is being led by the Ethics and Anti-Corruption Commission. Mr Haji and his team have travelled extensively to assemble evidence. The EACC has combed the accounts and transactions of both Mr Waititu and his family and of course the county government.

The accused will be defended by some of the sharpest legal brains in the country and so it goes without saying that the prosecutions’ cases must be comprehensive, all-embracing and watertight.

We must remember that in spite of what is in the public domain, the accused are presumed innocent until their cases are heard. Then the relevant judge will decide accordingly based on the evidence produced and whether the prosecution has convinced him or her that there is sufficient evidence for a conviction.

We have often heard protestations that the Judiciary is too lenient on those accused. But we must bear in mind that those hearing the relevant cases must be convinced in no uncertain terms of the guilt of the accused. Some cases are lost not because the accused is innocent but because the guilt has not been sufficiently proven beyond reasonable doubt.

One tool that the DCI and DPP must use more is plea bargaining. The dams’ scams undoubtedly involve several other players. The use of plea bargaining on those already charged could yield some exceedingly valuable information and evidence and lead to a more solid prosecution case.

Whilst obtaining a conviction is a central objective, it must be coupled with another, which is to make the price paid a deterrent to future corruption.

As well as thorough investigation, the punishment must be such that all can see that being corrupt does not pay. That means the Judiciary must be fully up to speed when it comes to the penalties available to it to mete out.

That is not just the requisite jail term, but must also be financially painful. Look at it this way: Corruption robs us of around three per cent economic growth.

Put another way, it cuts our growth by a third.

Much of this is money stolen for personal gain. It is a colossal crime against society. Conversely, society is robbed of job opportunities, school places and basic medical facilities and is forced to take a dive in standards of living.

Assets should be frozen and seized and ultimately paid back to the society from where it was stolen and with interest.

There is a strong argument for the operation of the Asset Recovery Agency (ARA) to be strengthened and deepened. It is still a relatively young institution and needs constant nurturing.

An independent review and audit should be undertaken to see what the ARA needs in order to beef up its performance.

The same goes for the judicial system. One of the main criticisms is the slow pace of justice. Capacity must be increased so justice can be delivered expeditiously without short-cutting its quality.

The judicial system operates in an archaic bubble. While recording of proceedings is done mechanically in much of the world, here it is done in long hand. If our courts moved into the modern age on this the length of court cases would be cut by half. Just think how much capacity would be freed up in our courts. Another potential judicial roadblock is that cases drag on and on. In corruption cases, the Chief Justice can give ‘practice directions’, which then require the case to be heard on a ‘day-to-day’ basis until its conclusion.

Not only would we get over the issue of “justice delayed, justice denied” but the public’s sceptical faith in the judiciary would get a welcome boost.

The Central Bank of Kenya also plays a pivotal role in the collection of financial transactions both here and internationally. Today, the global financial regime must disclose fully clients’ account details when formally requested by the relevant central bank. Much of the money stolen is often sent on a merry-go-round to try to disguise its origin and hence launder it.

What comes out clearly is that ultimate success in confronting corruption must be a holistic exercise. It must involve extensive forensic investigations, including banking authorities around the world, watertight prosecutions and a judiciary that not only works expeditiously but is also up to speed with the relevant penalties. The war on corruption can be ratcheted up, especially if the Judiciary joins the modern IT age.