This archive report was first published on 15 November 2019.
On November 15, 2019, the Director of Public Prosecutions hinted at imminent arrests of corrupt public officers. However, such pronouncements have often been met with little action.
The Judiciary has been criticized for being a major barrier to the war against corruption. Its officials have accused the other two arms of government of starving them of funds.
While funding is crucial, there is no evidence that a properly funded Judiciary would be instrumental in fighting corruption, especially in cases involving large sums of public resources.
The Judiciary's approach to corruption cases is rooted in a categorical error: treating corruption as any other crime. In Kenyan jurisprudence, criminals are presumed innocent until proven guilty, and the burden of proof lies with the prosecutor.
Prosecutors often struggle to provide hard evidence, and defense attorneys can emasculate them with ease. This has led to bizarre cases where public officers and citizens amass wealth overnight, only to be acquitted due to weak evidence.
The Judiciary's failure to provide feedback to other arms of government is a significant issue. Parliament crafts laws, the Executive identifies offenders, and the Judiciary is expected to provide guidance on how to handle cases. However, the Judiciary's lack of feedback has led to cases being dismissed due to weak evidence.
Judges and magistrates can see through some cases prima facie, but they fail to provide feedback to lawmakers on how to improve the system. The use of plea bargains is also a missed opportunity, as it could encourage suspects to come forward and negotiate a settlement.
Ultimately, the war on corruption will not be won unless the three arms of government work in synergy. Until then, few Kenyans will be willing to be whistle blowers due to the risks involved.
