The [Kenyan] Law Process

In these past few weeks, we have witnessed attempts, by all manner of government organs, to bring to book people that are directly responsible for pilfering the public coffers. Had it not been for Kenyans’ experience with previous such failed “attempts”, we might actually have sat down to applaud the newfound fervor with which past crimes are being tackled. 

Experience has taught us that naming a few individuals does not mean that they might necessarily be charged for their crimes. I am not trying to imply that every “mentioned” person is essentially guilty of a crime; in fact, the very task of the law courts is to deliberate over the merit of their cases and submit an equitable judgment. At least, that is how the system is supposed to work.

However, no one ever said the system is perfect. The majority of us laymen would assume that justice would be allowed to take its course, but that frequently is not the case. The lawyers and their clients treat us to a host of legal tricks – injunctions, countersuits, appeals et al. - that serve to unnecessarily slow down and frustrate an already slow process. For the sake of justice, the law process has to be slightly slow to enable adequate time for the preparation of good defense and prosecution strategies; the law, after all, tries to give everyone the benefit of the doubt for us as the old saying goes, “better to set free a dozen criminals, than to send one innocent person to jail”. It is, however, a mockery of the law to slow this ‘sympathetic’ process down even further without just cause. The increased costs and damage to the reputation of the legal system are simply not justifiable.

Many classes of corruption have been brought before the courts recently, but I have chosen to focus only on the class of grand corruption concerning looting of public funds specifically because it presents, perhaps, the best instance in which a quick remedy can be used to alleviate its ailments. Because the use of these public funds is placed in the trust of the people in power by the citizenry, any contravention of this trust should be treated as a gravely unique crime; the rules of simple theft do not apply to it, and as such a new set of extra-judicial rules and mechanisms should be used to combat it. As a first rule, the corruption case, once presented before the courts, should supersede all other pending criminal cases leveled against the defendant. This is naturally in order because the case that bears the greatest impact on the citizenry should be dealt with first. In a nutshell, this would wash away the myriad of useless injunctions that lawyers use to shield their clients from prosecution under the guise of pending cases.

Yet another rule would be that anyone being prosecuted for such crimes should be subject to a mandatory full wealth disclosure. Some believe that this might expose people’s wealth sources and put them at risk of harm from unscrupulous individuals. An amicable solution to this might be that the wealth declaration be made before independently constituted civil society boards; further background searches can be carried out into the lives of the board members to ensure that they do not harbor any vested interests in the defendant’s sources of wealth. This measure would alleviate the current stalemate posed by a case like Dr. Chris Murungaru’s in which a defendant feels he can dictate which sources of his wealth he can disclose. As a public figure granted public trust, should the public feel betrayed, then it is up to that public figure to regain that trust only through a full measure of transparency.

Perhaps, central to this whole notion, since we have identified this as a more serious form of crime, then perhaps we will require a whole new special branch of courts to deal with these cases. This would ease a bottleneck by freeing up the ordinary courts to deal with other less-complicated cases. However, because of the time it would take to set up whole new courts that are strictly dedicated to corruption, this should be pursued as an ideal for implementation later.

These are just a few measures that might prove useful to the already strained legal system. I am sure there is more that can be added to the list, but, as a start, these measures would no doubt show any laymen that the government and the law society are in fact serious about bringing an end to grand larceny. If these measures (and more) are not put in place, then pursuing these cases becomes yet another liability to the public because more tax money is spent than can ever hope to be recovered.