The heart of impunity

He finally did it. Justice Aaron Ringera finally resigned last week, ending a shameful and unnecessary stand-off between the Kenyan president and parliament, shameful and unnecessary for many reasons. The president could easily have retained authority and face by gracefully admitting to a process problem as soon as the matter was first raised. The head of the Kenya Anti-Corruption Commission (KACC) could have retained the same by gracefully declining re-appointment until due process was followed, instead of allowing the president to spare himself ignominy at the KACC head’s expense.

Grace is in short supply in the public domain. Hackles and temperatures apparently had to be raised. Precious parliamentary time had to be wasted, at the expense of pending decisions on the annual budget as well as important legislative initiatives, such as the private members bill to establish the Special Tribunal. The KACC’s advisory board had to have its lack of oversight powers exposed. Civil society had to put itself on the line with another shameful and unnecessary stand-off with the Kenya police force on the right to freedom of assembly – in this case, around the desire to peacefully and publicly protest the KACC re-appointments. And the public had to be upset. Energy and time diverted from proactive movement forward to reactive attempts to simply hold the line.

With all of that in mind, rather than celebrate the supposed victory of the ‘popular will’ over the whims of the imperial presidency, we should actually question the opportunity costs of this kind of shameful and unnecessary stand-off. And, more importantly, we should interrogate and address the real issues raised by this stand-off about the KACC as an institution.

For what is clear is this. The initial problem was one of process, not of performance. But the impetus and momentum that the stand-off generated was based solely on perceived performance. On the scorecard of ‘public opinion’, the KACC was judged and found wanting with respect to delivering on its purpose – that of preventing and addressing corruption.

It was thus on addressing grand corruption, in particular, that the head of the KACC fell. Nobody seemed willing to listen to his adamant and spirited defence, centred on the fact that the KACC has only investigative not prosecutorial powers. Nobody cared.

But care we must, because encapsulated in that defence is, in fact, the core problem with our entire criminal justice system: the role of the offices of the attorney general and the director of public prosecutions. There is an institutional design problem that offers an easy out to avoid spirited follow-through with respect to the accountability and bringing-to-justice of suspected criminals. And that easy out is almost invariably taken when the suspected criminals are those in high public office.

What is the easy out? The powers of the office of the attorney general and the director of public prosecutions to simply refuse to prosecute files forwarded to them. The powers to return files to the Criminal Investigations Department of the Kenya police force, citing inadequate investigations for the purposes of successful prosecution. The powers to return files to the KACC for that matter, citing the same. The powers to delay and delay and delay, simply by sitting on files, trusting in the inevitable short-term focus of the Kenyan public to eventually enable the matters in the files to simply be of no supposed consequence anymore. The powers to intervene and end proceedings when private citizens, fed up, try to initiate private prosecutions. The powers to reply to any public questioning of progress by pointing fingers in an endless blame game; the evidence was insufficient, the witnesses are absent…

This easy out must be addressed. The suggestion that seems to be gaining currency is that the KACC should be given prosecutorial powers. But, as Maina Kiai, the former head of the Kenya National Human Rights Commission (KNCHR), has warned, that might be jumping from the frying pan into the fire. Obviously granting the KACC prosecutorial powers would not address the design problem that relates to the utter inadequacies of the offices of the attorney general and the director of public prosecutions. But, more importantly, granting the KACC prosecutorial powers risks creating a potentially extortionist monster of the KACC. There are reasons for checks and balances and the separation of powers, but checks and balances and the separation of powers in this instance will only work if all elements of the criminal justice chain work with the same intentions (including and particularly the offices of the attorney general and the director of public prosecutions).

In short, we cannot fall prey to the temptation to create ever more dense and impenetrable layers to the criminal justice system and yet avoid addressing the rot at its core. Back to basics and simplicity should be the driving principle. Are the evident number of potential criminal cases, including those to do with grand corruption, being successfully prosecuted? If not, why not? And what must be done to correct that?

The head of the KACC may be gone. But replacing him through due process will do nothing to satisfy the evident public anger at continued impunity for grant corruption without asking – and answering – those critical questions. Let us all now sober up and do so.

BROUGHT TO YOU BY PAMBAZUKA NEWS

* This article first appeared in The East African.
* L. Muthoni Wanyeki is the executive director of the Kenya Human Rights Commission (KHRC).
* Please send comments to [email protected] or comment online at Pambazuka News.