Justice Nixon Sifuna.

Justice Nixon Sifuna. He questioned the behaviour of the Prosecution on withdrawing corruption cases from court.

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Prosecute graft cases to the end

Who do the Kenyan prosecutors work for? The rate at which corruption cases are being dropped begs the question. As things are in relation to the anti-corruption war, it won’t be far-fetched to imagine that the Prosecution is in bed with criminals.

There is no way an organisation can make so many legal and administrative errors over corruption and other serious crimes involving the politically and financially influential. It is either inept and incompetent or corrupt to the core. I lean towards the latter.

Kenya’s rot started in government institutions such as those in the criminal justice system and it is now on a free-fall. Justice has become a commodity that only the corrupt and murderers can afford. Prosecution has proved that it is not in office to hold criminals to account but give them a carte blanche to plunder, maim, torture, kidnap and kill with impunity.

A society in decline mode is seen through the weakening of its governance institutions by self-centred politicians and criminals. We are on the precipice looking down a deep gorge; we just don’t see it.

As I write, the government has gone against court orders and forged ahead with its plan to deploy police officers to Haiti and also force the Ogiek community out of their ancestral home in Mau Forest.

The government ignoring court orders has become so normal that any case pitted against it is an exercise in futility. Because the government will always do what the government wants—if that entails going against even the Constitution, so be it!

As the custodian of the Constitution on behalf of the people, the Executive and Parliament, which also makes the laws, have become the torchbearers for those bent on breaching the law. I was, hence, not surprised when Pastor Ezekiel Odiero was ‘freed’ after the Senate got involved while police investigation of Shakahola massacres were ongoing. It was a matter of time before strings were pulled and prosecutors forced to drop that case too.

With normalisation of breaches of the law at the top, it makes it easier for those in the criminal justice system tasked with dealing with matters of crime to bend the law in favour of criminals, especially the so-called ‘Big Fish’.

It was, therefore, refreshing to hear Justice Nixon Sifuna question the behaviour of the Prosecution on withdrawing corruption cases from court. But Justice Sifuna is a lone voice in a court system that had long sold its soul to impunity.

Last vanguard

Withdrawal of corruption cases and serious crimes could only happen with the involvement of people within key agencies in the criminal justice system. The court has clearly played its part in exacerbating the problem by remaining silent this long.

The court is the last vanguard when it comes to matters pertaining to justice and interpretation of the law correctly with a view to protecting the integrity of the Constitution. This has not been the case in as far as the war on corruption is concerned.

If anything, the Constitution has been misinterpreted and ‘elasticated’ to favour those with power and financial influence. It is, therefore, not surprising to see the Prosecution fragrantly breach the law and abuse court processes so as to save criminals from prosecution.

Principally, the criminal justice system is not working in a joined-up fashion to end crime, big or small. It seems every agency is out to pursue personal wealth via bribes. These are publicly funded institutions tasked with protecting the public interest. In the case of corruption, that translates to protection of public funds.

Sadly, this is not happening as those legally mandated to protect public funds are first out to abuse the powers given to them to line their pockets with bribes from corrupt and criminal elements in society.

Gone rogue

The Prosecution has gone rogue and illegally baptised itself as the police, prosecutor and judge. It is, therefore, time the prosecutors were prosecuted—especially in relation to ‘suspicious’ acts of withdrawal of corruption and serious crimes already before the courts. They are not only abusing the law but wasting public funds.

But who will prosecute the prosecutor? That is a billion-shilling question, I know, but worth asking. Setting up a mechanism that will bring sanity and integrity to the agency is overdue. It is the least the public expects. I, therefore, agree with Judge Sifuna that it is time the Office of the Director of Public Prosecution was audited to rid the agency of corrupt prosecutors.

It might seem fine for prosecutors to line their pockets as they fight to save a corrupt individual who depleted public resources but a child may have died due to lack of a key service like public healthcare. Corruption war is as much about instilling public confidence in public institutions as it is about saving lives and livelihoods.

The anti-graft war can only be won by having the officials in the criminal justice system with integrity to fight it. Unfortunately, Prosecution reeks of corruption.

- Ms Guyo is a legal researcher. [email protected]. @kdiguyo