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Winning the war on corruption .. wearing down suspects

Thursday August 29 2019

By BANKELELE
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If you ask what Kenyans want to see in the war on corruption, many will say they want to see more “big fish” or organisational heads convicted and jailed for corruption.

But what is also becoming clear is that being charged in Kenya is akin to being partially convicted.

The current cycle starts with arrests on Friday and ends with the accused persons appearing in court on Monday or Tuesday where charges are read out on live TV.

But with time, the public loses interest, as the focus shifts to the next set of arrests.

Meanwhile, the court system is very procedural. It entails pre-trial hearings, statements taken, documents exchanged and trial dates set.

Later when the cases start, witnesses testify in court and introduce documents and are cross-examined. Judges still write in longhand and eventually deliver a verdict.

TEDIOUS PROCESS

All this is all supposed to happen within two years. This assumes there are no appeals such as constitutional ones that question the merits of the charges or the validity of the accusers.

Prosecuting corruption, or white-collar cases, is very documentary – it relies on documents being presented in court.

In one new case, there was a comical scene when the lead prosecutor declared that the case, which has over 25 accused persons, entailed over 25,000 pages of evidence.

Sharing this evidence with all the accused persons would mean that 500,000 pages of evidence would have to be provided to the people charged.

He wanted to provide all the lawyers with a computer drive with the evidence while defence lawyers demanded that the prosecutor print, at the government’s cost, and hand pages of evidence to all the accused.

BASIC RIGHTS

An accused must be present in all phases of the case, particularly during witness statements. This is part of the rights that Kenya’s Constitution confers to an accused person.

These include the right to have adequate time to prepare a defence; to have the trial begin and conclude without unreasonable delay; to have access to that evidence the prosecutor will rely on, and also the right to be present when being tried.

This takes an incredible toll. People accused of crimes have to spend months and years appearing in court.

If you wander through the courts of Milimani, you will find several big-money-cases progressing quietly, many defended by a few high profile lawyers.

The blogJustice Now provides insights on several corruption cases that are going on in the courts, such as Anglo-Leasing, Nacada, Tokyo Embassy, Kenya Pipeline, Nairobi County, Karen Land, Imperial Bank and medical clinics, et cetera.

The suspects show up every day, all dressed up like they are at their old offices, to listen to minute details of their cases.

OUTCASTS

Meanwhile, they lose friends and status. They and their families become pariahs. People don’t call them or socialise with them openly.

After all, their phones could be tapped or they could be under other surveillance. They can’t attend to business and they can’t travel freely, as lodging passports with the courts is part of the bail process.

But perhaps the most punitive measure for some accused people are the preservation orders granted under the Proceeds of Crime and Anti-Money Laundering Act.

This gives the Assets Recovery Agency powers to freeze assets of accused persons that are believed to constitute or have been acquired using proceeds of crime for which they are now charged in court.

They have been used variously to seize vehicles and property, and more seriously to freeze bank accounts of suspects. This has rendered many of them unable to provide for their families or even pay legal bills.

STRATEGY

What will it take to get more convictions? The Chief Justice once admonished the Director of Public Prosecutions with bringing forward unwieldy cases, charging 30 people under one case (Nairobi News, January 25, 2019).

But charging a large group of people with one crime can also be a strategy. It will shake out the weak and turn them to state witnesses if they cooperate in the prosecution.

In a few cases, there is plea-bargaining, which is a short cut done to get to the big fish.

An institution like a bank may cooperate and pay a large fine if it was not the main culprit, but only a lax watchman under whose watch a crime happened.

But even if the charges are dismissed, or an accused is completely acquitted, it has been an arduous journey.

Twitter: @bankelele