Once more, the Director of Public Prosecutions has hinted at imminent arrest of corrupt public officers. Similar pronouncements in the past have culminated in the proverbial Shakespearean situation that is full of sound and fury, yet signifying nothing.
In retrospect, the Judiciary has been pointed out as a major barrier to the war against corruption.
Its officials have in turn accused the other two arms of the government of conniving to starve them of funds.
A critical look at the whole situation points to some truth concerning the irresponsibility on the part of the judiciary. Whereas funds are a vital factor, there is no compelling evidence that a properly funded Judiciary will be instrumental in fighting corruption – more so the cases involving huge sums of public resources.
The Achilles heel of the Judiciary lies in what can be termed categorical error. It is a grave mistake to treat corruption like any other crime. In the Kenyan jurisprudence, criminals are usually presumed to be innocent until proven otherwise.
Further, no prosecution can be sanctioned without parading hard evidence. The burden of proof is loaded onto the prosecutor. This is where trouble begins. We have been treated to bizarre cases where public officers and private citizens amass astronomical affluence overnight. Upon being charged, they engage seasoned barristers who eventually emasculate hapless prosecutors. At times, the speed at which these attorneys compile their defence leaves one wondering whether they were acting as retainers for the suspects.
In my view, the Judiciary has failed to provide feedback to other arms of government. There is a reason the Executive, the Legislature and the Judiciary were identified as government. Parliament crafts laws – including those that provide guidance on how particular offences should be handled. The Executive identifies offenders and parades them in courts. The weak link then manifests itself: cases are dismissed owing to weak evidence.
One would expect the courts, in the spirit of collective responsibility, to provide feedback to Parliament on what can be done so as to defeat the schemes of criminals and their defenders.
Judges and magistrates are able to see through some cases prima facie. What then stops them from compiling their lessons, and providing such feedback to lawmakers?
Furthermore, there is this small matter of plea bargain. Pray, are there success stories? I highly suspect that many suspects are willing to come out and negotiate a settlement so that they receive a mild punishment as the state recovers part of the loot. Knowledge of such precedent cases will encourage them to come out and save the courts much agony.
The war on corruption will never be won unless the three arms work in synergy.
As things stand, however, very few Kenyans are willing to be whistle blowers for obvious reasons.
Wycliffe Osabwa is a lecturer, Alupe University College, Busia; [email protected]