Kenya is today engaged in a war against corruption that seems, at least so far, destined to fulfil our aspiration to live in a corruption free country. In its editorial of November 3, 2018, the Daily Nation stated as follows: “The country has registered remarkable progress in the campaign against corruption following intensified investigation and prosecution of public officials suspected of engaging in the vice. Many high-profile individuals have been arrested and charged in court, sending a strong signal that the days of impunity are gone.”
The long suffering mwananchi is hoping that this time round we shall succeed in removing what the Daily Nation editorial called “a cancer that gnaws right at the heart of the nation”. But doubts linger and the one question on everyone’s mind is whether there will be any convictions this time or the current prosecutions will be rendered fruitless in what has over the past been a “catch and release” game in the name of a fight against corruption.
For this, all eyes are on the Judiciary. The public is confident that the offices of the Director of Criminal Investigation and that of the Director of Public Prosecutions are currently occupied by persons who are committed to this war. This is unlike the past where the holders of these two offices came to be regarded as the greatest impediment in the corruption war.
But despite all the efforts that the DCI is putting into his investigations and the DPP is putting in his prosecutions, a critical analysis of the Kenyan Judiciary indicates that the DPP will not secure any meaningful convictions in corruption cases where rich and powerful men are the accused. Deep in the psyche of the Kenyan Judiciary is an attitude that unless purposely and drastically altered, will not allow the conviction of any elite Kenyan for any crime, let alone corruption.
The problem lies in a judicial philosophy that has been cultivated by the Kenyan Judiciary around the “presumption of innocence”. It is a philosophy that is borne out of a perverted relationship between the “presumption of innocence” and impunity and in which the purpose of the former has been reduced to nurturing and nourishing the latter.
The presumption of innocence is based on a common sense rule of life that requires everyone to back their words with proof. It did not originate as a creation of jurisprudence but rather was borrowed from every day human social intercourse and imported into the law. However, different legal systems have had different applications of the “presumption of innocence”. The presumption is not a religious dogma pronounced by scripture and thus not rendering itself to human innovation.
Each legal system has had to decide for itself what comprises the rights and obligations under the presumption, though attempts continue to be made to make these rights and obligations universal. In Kenya, we are developing a “presumption of innocence” that is no longer defining the rights of an accused person and the obligations of the prosecutor but rather deciding who gets to be subjected to the criminal justice system and who doesn’t.
The presumption of innocence is the legal principle that one is considered innocent unless proven guilty. It was traditionally expressed by the Latin maxim ei incumbit probatio qui dicit, non qui negat (“the burden of proof is on the one who declares, not on one who denies”).
In many jurisdictions, presumption of innocence is a legal right of the accused in a criminal trial, and it is an international human right under the UN’s Universal Declaration of Human Rights, Article 11. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must collect and present compelling evidence to the trier of fact. The trier of fact (a judge or a jury) is thus restrained and ordered by law to consider only actual evidence and testimony presented in court. The prosecution must, in most cases prove that the accused is guilty beyond reasonable doubt. If reasonable doubt remains, the accused must be acquitted.
The problem lies in the judicial philosophy that our judiciary is developing. In this judicial philosophy, the “presumption of innocence” is a value statement. In Kenya, when we say that every person is innocent until found guilty, we are not referring to the rights of the accused person and the obligations of his accuser. We are instead making a value statement of the accused person and saying he is a good person and is unlikely to have committed the crime that he is accused of.
However, the “presumption of innocence” is not a statement of general innocence. To the contrary, the presumption is rooted in the reality that the person who gets to enjoy it is suspected of having committed a criminal offence. The criminal justice system then comes in to secure for the suspect particular rights by treating the suspect as an innocent person. But treating the accused person as an innocent person is very different from treating the person as though they were a virtuous person. The innocence the presumption is concerned with is only in relation to the charges laid and the trial taking place.
In Kenya, we have mixed these two perspectives and are increasingly treating anyone suspected of a crime as though they are virtuous persons being victimised by the criminal justice system. We talk of the criminal justice agencies as though they are the greatest threat to each Kenyan’s civil liberties and it begins to sound as though it would be a good thing if the offices of the DCI and the DPP were abolished all together.
While the criminal justice system exists to fulfil the presumption of innocence, we are now using the “presumption of innocence” to negate our entire criminal justice system. The dangerous thing about where we find ourselves today is that this is not a phenomenon brought about by an overzealous interpretation of civil liberties. It is not every criminal suspect in Kenya who is being treated as a virtuous person.
What we have instead is the product of an invention by the purveyors of impunity whereby they have managed to make our civil liberties the fort in which to preserve and protect their corrupt practices, lifestyles and proceeds.
This is clearly seen in the way we treat the chicken thief and the mega corruption villain. The chicken thief is always presumed guilty. We try him only to confirm what we already know. His standing in society and his poverty says that what he is accused of is something he could have done. So we arrest him on Friday, deny him bail and when invariably we find guilty, we “throw the book at him”. The mega corruption villains are elite members of our society. They are presumed incapable of committing the crimes they are accused of. We extend to them each and every privilege that can make the experience of the criminal justice system pleasurable. We subject them to a trial process as we mourn for the inconvenience we have to take them through.
When we very regrettably have to find them guilty, we apologise to them with lenient sentence, purporting to juxtapose custodial sentences with easy-to-pay monetary fines. But in reality we never get there. In each of these elite cases, the prosecution never presents sufficient evidence and cases are never proved beyond reasonable doubt. For how do you prove a case beyond the reasonable doubt of a judge or magistrate who already doubts that the accused person could have done what he is accused of?
But that has not been enough. The presumption of innocence in Kenya is now not just protecting impunity but granting immunity.
Through a series of decisions that have become common in the Judiciary, it has become possible to stop the criminal justice agencies from suspecting one of a crime. It won’t be long before it is possible to get an order declaring oneself innocent without a trial.
It is inconceivable that there can be any reason why any person’s conduct cannot at any time be subjected to investigation by the criminal justice agencies. This is a threat to the survival of the entire society. It is agreed that in the process of granting rights to accused persons, some guilty people will walk free but that the criminal justice system would be damaged by the thought of an innocent person having been jailed more than that of a guilty person having been released.
But the Judiciary exists not to grant freedom to criminal suspects but to protect the society. So the courts must strike a balance. Courts all over the world are striking these balances, each coming up with different rules on how to grant rights to accused persons without having to destroy the society.
Elite criminal suspect
In Kenya we don’t make that balance any more. The elite criminal suspect has become king. Instead, it is the Director of Prosecutions who has become the villain. He is the one who wants to take us back to the dark days.
If you came to Kenya for the first time today, you would believe that the person destroying this country is not the mega corruption villain but the DPP. You will not find any instance in which our judiciary is trying to make the work of our criminal justice system easier. Instead, it is the life of criminal suspects that gets easier and easier.
This is not what is happening elsewhere in the world. In other jurisdictions court are looking for ways to give criminal justice systems as much leeway as possible to deal with ever increasing complex crimes and criminals.
The Supreme Court of America, which we in Kenya have always looked at as the shinning light in the protection of civil liberties, has over the last few decades revised a lot of the rights that had been granted to criminal suspects.
But we are doing the opposite. And for that reason, Noordin Haji will find securing convictions in corruption cases an uphill task.
A very urgent intervention is required or the war against corruption will soon collapse and die.