A basic question in criminal law every student must learn to answer is: ‘When is a crime committed?” Every non lawyer knows that a crime is committed when one intentionally does something prohibited. It is very much like a sin; only that the punishment is more immediate. Kenya’s law enforcement agencies, however, seem to have a new definition of crime. According to the legal philosophy of the Justice ministry, one can uncommit a crime after it is complete. The ministry’s position has been adopted in response to the Anglo-Leasing scandal which, according to the minister, is no longer an issue since the money has been returned.
He declared Anglo Leasing “the scandal that never was” even as Mr. John Githongo was promising prosecutions over the sordid affair. This new legal philosophy sets a dangerous precedent in law enforcement. It creates an escape route for every unsuccessful thief through which he can avoid sanctions for his criminal conduct.
Punishment for crime will no longer depend on the illegality of the act committed but on the culprit’s ability to recompense. Presumably, we should look kindly on the Anglo Leasing thieves because they returned Sh 461 million.
The purpose of criminal law, however, is not to repair injuries. It is to punish injurious actions. Criminal law is so dedicated to eradicating harmful deeds that it has sanctions even against attempts to conduct an illegal act. Our Penal Code prohibits an attempt to commit a crime in very harsh terms. Section 388 says that, when a person intending to commit an offence puts his intention into execution, he commits a crime. The section says it is immaterial if the offender does all necessary to complete the offence or if he is unable to complete it because he decided against it.
A person who begins to commit an offence but in the process refrains from going on is still liable to punishment for the attempt. Similarly, a person who, for instance, decides to commit murder, but, unknown to him, the intended victim dies from other causes will still be punished for attempted murder regardless of the fact that it would have been impossible to commit the murder.
How, therefore, does a person who has taken public money and banked it in his account escape punishment because he brought it back when his actions were detected? This was more than an attempt. The illegal act had been completed.
It is legal sacrilege to dismiss such a criminal act as a non-issue. And it is dangerous too. It castrates our criminal law and disarms our law enforcement agencies. It exposes Kenyans to the gamble of the criminal, justice being available only to those who cannot “uncommit” their crime.
But, quite apart from the legal abyss that this new philosophy of “uncommitting crimes” throws our country into, the political expense top our anti-corruption drive is heavy. On the one hand, the Government is stating that it shall have zero-tolerance to corruption. In support of the commitment, billions of shillings are set aside for an independent anti-corruption detecting system and to finance a team to change the culture of corruption.
What is the message to the rest of us? Simple. It is okay to engage in corruption but please do pay back when caught. You will be punished only if you fail to repay. We can expect that this philosophy will develop until the culprits have a right to subtract their expenses before refunding. They will claim a right to profit before the refund until they give bank guarantees to repay when corruption is proved.
If this forecast looks unlikely, you should consider the Government’s reaction to Sir Edward Clay’s remarks. I must state first that I detest the way he meddles in our internal affairs and I have had occasion to write and tell him to keep his England and let us keep our Kenya. But on corruption, he is justified to meddle. He has been accused of making noise because British companies are losing out on business in Kenya. That is precisely why the envoy must talk and make noise. If British firms are losing business because of corrupt practices, then corruption is down the alley of Sir Edward. He disappoints many of us by not naming names. It is his solemn duty to his government to tell Kenyans everything for he is here to protect the business relationship between Kenyans and Britons.
The relationship between Britons and Kenya is the oldest diplomatic, social, political and commercial relationship between this country and any other. If that relationship suffers, it must be for sound reasons. It is not in the interests of Kenyans for ministers to taunt the British High Commissioner that British companies are losing business here when that loss of business is not bringing any benefit to us.
We should be told why British companies are losing business. Are they more expensive or less efficient? Are the other countries we are dealing with more technologically efficient? Have they lost the business transparently and fairly? Is it in our national interests for our ministers to mock the envoy on national television?
I don’t think so. And I think that where corruption is concerned, the interests of the Britons and Kenyans in tandem. Judging from the amount of money and other assistance we receive from the UK, it is regrettable if the Developments going on could result in weaker ties with our former colonisers. Should this ever be, let it not emanate from the corrupt interests of a few individuals.