The arrest and arraignment of high-profile individuals over graft-related charges has often been marked with extensive publicity and fanfare, raising hopes among Kenyans that a lot of effort is being exerted to fight corruption.
Their lawyers will spend considerable effort using their best legal arguments to ensure their clients are released on bail.
After securing freedom, little comes out of the cases, as either they drag on forever, are terminated prematurely, or an acquittal is pronounced by the court “for lack of sufficient evidence”.
Prosecutors’ inability to secure timely convictions, or any at all, has mainly been blamed for the way most corruption cases are being handled, especially by investigators, police and prosecutors.
Some of the challenges range from lack of thorough investigations and overcrowded charge sheets to non-credible witnesses, and failure to comply with the law of evidence.
Law Society of Kenya President Allen Gichuhi says one of the persistent complaints is that where, say, five accused persons are charged with too many counts and prosecutors also line up too many witnesses, such a case ends up being convoluted.
“Some of the suggestions that have been made is the prosecution should sieve and identify the counts they are very confident they have all the evidence and can be concluded faster, then leave out the counts that are shaky, because at the end of the day, what matters is a conviction,” Mr Gichuhi.
The Director of Public Prosecutions (DPP) has also saddled the criminal registry with many accused persons who arguably ought to have been dealt with separately.
Lawyer Nelson Havi says the trial ends up with a scenario where there are more than 10 accused persons with one charge sheet and about 30 witnesses.
“It is improbable that such a case can be determined within a year,” he says.
Lawyer Harun Ndubi adds that when the DPP opts to charge everybody, two challenges arise. First, there will be no witness.
Secondly, if more than 10 accused persons are brought together in one charge sheet and each is entitled to a lawyer of their choice, there will be too many lawyers seeking to address the court.
It gets complicated managing those lawyers in terms of their submissions, particularly if some of the accused persons have hired the services of more than one lawyer and each wants to cross-examine witnesses and address the court.
“So you find that you have a logistical difficulty because even getting a date that is convenient to all those lawyers is very difficult. That is why some of those cases have been allocated dates of next year. Because lawyers’ diaries are already clogged for this year,” he says.
Equally, it does not make prudent use of the criminal justice system to have 10 lawyers against one prosecutor.
However prepared, such a prosecutor may be outmanned. Many of the people who appear as accused are actually witnesses, and the DPP should target the suspect that bears the highest responsibility for a suspected offence with the others engaged as witnesses.
“There are people who may have played a role but they are very resourceful; they have the information. They should be made state witnesses,” says lawyer Okweh Achiando.
In cases where all the people involved were charged, the State has often called witnesses from related departments but who were not directly involved in the matter and may not be very helpful to the case.
A senior DPP counsel, who shared the prosecution’s perspective on the matter on condition of anonymity, says they are left with no option but to bring many witnesses because they are required under the law to prove the obvious, even matters that are not contested.
“The law requires that we call witnesses to state even that which is not in dispute. This is the reason why we have so many witnesses, and you can see that takes a lot of time,” the DPP counsel said.
Further, looking at those charged with graft, if it is a company, it often comes out that all the accused had a role to play, and proving the charge of conspiracy will only require that all those involved be charged.
“We have been struggling with the issue, whether to prefer charges only to the main players in the offence. However, you find that each had a role to play and they all need to be charged so that we can demonstrate the chain leading to the offence,” the DPP counsel said.
Ever since the corruption division was created, many cases have been brought to court. DPP Noordin Haji has been particular that no one will be spared.
But his efforts are being constrained by the lack of capacity in terms of personnel and time to prepare.
There are approximately 900 State prosecutors against an ever-increasing number of corruption cases and others pending in court.
“Many of these white-collar crimes have very voluminous documents and need thorough review of the documentation for purposes of prosecution. This seldom happens, and often the prosecution ends up adding additional information as they go on with the trial. So they end up prosecuting a case piecemeal,” lawyer Havi said.
The law that clearly stipulates the rights enjoyed by all accused persons has also constrained the DPP’s free will in managing some of the suspects who bear the greatest responsibility, such as having them denied bail to deter others from engaging in graft.
This, in addition to the presumption of innocence until proven guilty, has seen courts release suspects on bail irrespective of the nature of the economic crime committed.