This archive report was first published on 6 August 2019.
As the country grapples with corruption, the Judiciary's role in delivering justice is more critical than ever. Two high-profile cases, involving Rotich, Thugge, Kimosop, and Waititu, are set to be heard in the coming weeks and months, and the outcome will have far-reaching implications for the fight against corruption.
While the Director of Public Prosecutions, Noordin Haji, and the Ethics and Anti-Corruption Commission are leading the prosecutions, the accused will be defended by some of the sharpest legal brains in the country. It is essential that the prosecutions' cases are comprehensive, watertight, and convincing to secure convictions.
However, the accused are presumed innocent until proven guilty, and the Judiciary must be convinced of their guilt beyond reasonable doubt. The use of plea bargaining could yield valuable information and evidence, leading to a more solid prosecution case.
Obtaining a conviction is a central objective, but it must be coupled with making the price paid a deterrent to future corruption. The Judiciary must be fully up to speed with the penalties available to it, including financial penalties that are painful enough to serve as a deterrent.
Corruption robs the country of around three percent economic growth, cutting our growth by a third. It is a colossal crime against society, and society is robbed of job opportunities, school places, and basic medical facilities. Assets should be frozen and seized, and ultimately paid back to the society from where it was stolen, with interest.
There is a strong argument for the operation of the Asset Recovery Agency (ARA) to be strengthened and deepened. An independent review and audit should be undertaken to see what the ARA needs to beef up its performance.
The judicial system operates in an archaic bubble, and modernizing its processes could significantly improve its efficiency. Recording of proceedings could be done mechanically, reducing the length of court cases by half. The Chief Justice can give 'practice directions' to ensure that cases are heard on a 'day-to-day' basis until their conclusion.
The Central Bank of Kenya plays a pivotal role in the collection of financial transactions, both locally and internationally. The global financial regime must disclose fully clients' account details when formally requested by the relevant central bank.
Ultimately, success in confronting corruption must be a holistic exercise, involving extensive forensic investigations, watertight prosecutions, and a Judiciary that works expeditiously and is up to speed with the relevant penalties.
