MUGWANGA: Let top lawyers prosecute graft cases - Daily Nation
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Let top lawyers prosecute graft cases

Tuesday September 11 2018

Philomena Mwilu

Deputy Chief Justice Philomena Mwilu with one of her lawyers, Wiper Party leader Kalonzo Musyoka, at Milimani Law Courts on August 29, 2018. PHOTO | EVANS HABIL | NATION MEDIA GROUP 

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A story is told of a man who went out hunting with his hound. They ran into luck as the dog bumped into a hare in its lair. As the hare took off at high speed, the dog gave a spirited chase with the hunter cheering it on. After a distance, the canine, panting and running out of breath, gave up the chase and collapsed into a heap. The hare disappeared into the horizon. The hunter was disappointed with the dog.

The hunter, after getting over his rage and the dog having regained its breath, ridiculed the poor animal for its failure to catch the hare after being outrun by the smaller animal. The dog responded: “Ah, master, it’s all very well for you to laugh but we had not the same stake at hazard. He was running for his life; I was only running for my dinner.” The master was humbled.

That is the situation Kenyans are in as far as the war on corruption goes. Actually, not just corruption but crime in its entirety.


Look at the two National Youth Service scandals, for instance. When then-Youth Affairs Principal Secretary Lillian Mbogo-Omollo and then-NYS Director-General Richard Ndubai and tens of ‘smaller fish’ were arrested in a Rambo-movie style in May, the country went into a rare celebratory mood.

Hope filled the air and acres of optimistic commentaries were penned to show how the war, for the umpteenth time, was about to be won.

The drama of the four-wheel-drive cars rolling down to Naivasha to take in alleged “air sellers” was breathtaking. The suspects were arraigned. Their pleas for bail were initially declined by Magistrate Douglas Ogoti, who rightly said the charges they faced were “worse than terrorism”.


It was deciphered then that the Judiciary was playing ball in the anti-graft war and the public was largely supportive. Then the dog-hare principle came into play: We soon heard of players in the investigation beginning to get compromised or compromising themselves.

A lead investigator was accused of seeking sexual and monetary favours from suspects in exchange for bungling the case. The matter has since gone cold. We cannot be sure that it has not been bungled.

But then, we set a poor investigator, whose only motivation was promotion in the job, against moneyed and aesthetically endowed suspects whose lives and lifestyles were in mortal danger. It is not hard to see which party was more motivated to run faster and who, like the disgraced dog, might run out of breath.


The came the Deputy Chief Justice Philomena Mwilu graft case. Without going into the merits and demerits of the case, it is clear that, unless there is a hidden card, the DCJ’s armoury is superior to that of her accusers.

Even before Justice Mwilu had been taken in, an army of well-known lawyers were falling over themselves to join her defence team. By the time she made her first appearance in the dock, a battery of 32 top lawyers, including four senior counsel, were at her service.

In the defence team were Siaya Senator James Aggrey Orengo SC, Dr John Khaminwa SC and Mr Okong’o Omogeni SC, among other notable legal names, including former Vice-President Kalonzo Musyoka, Makueni MP Dan Maanzo and Makueni Senator Mutula Kilonzo Jnr.


Deputy Director of Public Prosecutions Dorcas Oduor was the only memorable name on the prosecution team. The prosecution, which should, ideally, be fighting for the life of Kenya and Kenyans, is visibly disadvantaged.

The defence, which is fighting to save the DCJ, seems to have the upper hand. It is important for the country to take another look at motivation as a factor in public affairs management.

The Office of the Director of Public Prosecution should urgently examine its mandate and resources as it embarks on saving the nation from the claws of crime.

The ODPP could start by making public prosecution an attractive career to smart minds. It could make remuneration competitive so that fresh Kenya School of Law graduates consider starting their careers there.


Secondly, and most apt in this scenario, is to invoke the office’s liberty to engage special prosecutors.

Given that most Kenyans, including senior lawyers, are in agreement that grand corruption needs to be eliminated, DPP Noordin Haji should consider seeking the services of the likes of Mr Orengo, Dr Khaminwa, Mr Paul Muite, Mr Fred Ngatia and Mr Fred Ojiambo as prosecutors. Clearly, Mr Haji’s hound doesn’t look fast enough to catch the hare.

Mr Mugwang’a, a communications consultant, is a former crime and security reporter. [email protected] com. @mykeysoul