By Javas Bigambo
The promulgation of the Constitution of Kenya 2010 brought far-reaching governance, constitutional, legal, political and social reforms to create a more democratic and accountable state.
Among the changes brought by the constitutional and legal framework regarding the criminal justice system was in the investigations and prosecutions of criminal cases such as corruption and economic crimes.
A key institution, the Office of the Director of Public Prosecutions (ODPP), was established under Article 157 of the Constitution of Kenya. It is mandated to exercise State powers of prosecution by instituting and undertaking criminal proceedings against any person before any court, other than a court-martial.
Prior to this, the police undertook both investigations and prosecutions in Kenya. Some countries like Malaysia, Maldives, Nepal, Pakistan, Ghana, and India have similar criminal justice systems where the police constitute the full investigative authority.
In the current Kenyan legal set up, the ODPP does not investigate but cooperates with the investigative agencies that include the Directorate of Criminal Investigations (DCI), Ethics and Anti Corruption Commission (EACC); courts, the legal profession and other governmental agencies to ensure fairness and effectiveness of public prosecutions. In addition, according to Article 157 (6) the ODPP has powers to direct the inspector general of the National Police Service to investigate any information or allegation of criminal conduct.
Place of the judiciary in criminal justice process
The courts play the significant role of trying facts presented by prosecution, after investigations. Everyone has a right to fair trial. That is what the Judiciary guarantees in pursuit of social justice, and within the criminal justice system. The court system determines whether suspects are innocent or guilty for a given crime, and delivers justice to the person based on that.
However, prosecution is the fulcrum of the criminal justice process. In the interest of justice, prosecution serves the purpose of securing convictions in criminal trials. As such, courts help to uphold constitutional rights to equal protection and due process under the law. Courts rely on evidence for conviction. Trial courts adjudicate (make judgments on and pronounce) the guilt of persons charged with crimes, based on the evidence presented by the prosecution, after investigations conducted by the investigative agencies.
There has been sustained general feeling among Kenyans that courts have failed the criminal justice system by arbitrarily dismissing criminal cases, thus, contributing to the perceived high crime rates in the county.
Corruption, investigations and prosecutions
Complex crimes such as corruption, terrorism, money laundering and cybercrimes among others, are constantly evolving, presenting new and varied challenges to the Kenya criminal justice system.
By its nature, corruption is a multifarious, non-linear crime, by way of camouflage and intricate webs that varies with cases. That corruption in Kenya has reached nerve-racking epidemiological levels is no longer conjecture. In 2015, President Uhuru Kenyatta declared corruption a threat to nation security.
The investigators have faced lamentation for lack of witnesses and lack of evidence, poor investigations, and illegal confinement by the arresting agency, which lead to ineffective prosecutions. In such complex crimes such as corruption, witnesses are the cornerstones of successful criminal prosecutions and prosecutors depend on chains of witnesses who are reliable, and whose testimony can be accepted as truthful, accurate and complete.
The criminal procedure code provides that suspects should be arraigned in court within 24 hours from the time of their arrest. This has been deemed as a major hindrance to the police because there is insufficient time available to conduct proper investigations that can secure a conviction. The complexity of graft cases require many months of intricate investigations and access to crucial information from individuals and organisations.
Given the extent to which prosecutors must link and prove cases in court, it calls for specialized investigations. It seems that the lack of involvement of prosecutors in the investigation processes creates gaps, perhaps because as presently executed, the investigative agencies may not know exactly the various components of evidence that prosecution needs in court.
The creation of the Ethics and Anti-Corruption Commission and that investigates corruption and economic crime cases, and special magistrates (Judiciary) who preside over Anti-Corruption Courts and adjudicate over corruption and economic crime cases, constitute such efforts.
Status of legal and institutional framework on corruption
Stencilled on various statute books are copious remarkable provisions forbidding corruption and prescribing mechanisms for transparent procurement practices and disposal of assets, promoting leadership and integrity, wealth declaration for public servants, establishing institutions to fight graft and an elaborate penal code.
Based on these statutory provisions alone, it would be delusional to assume that the operationalization of the Anti-corruption and Economic Crimes Act, Public Officers and Ethics Act 2013, together with the Public Procurement and Disposal Act (2015) and the attendant legal framework, that the war on corruption in Kenya has been won.
However, it remains interesting that codification of leadership and integrity has not done much to dissuade corruption in the public and private sectors. As such, shortcomings in prosecution of corruption cases cannot be blamed on a shortage of legal and institutional frameworks in Kenya, but on gaps in the frameworks.
Major shortcomings in investigation of corruption cases and needed interventions
The dissonance between investigations and unsuccessful prosecution of corruption cases raises a value question that points not just compromise, but lack of goodwill and warped patriotism triggered by thirst for material wealth. Further, there is general lack of trust in police by the public, poor ways of securing evidence and limited awareness of legal rights.
The widening gulf between declarations of investigation and prosecution outcomes in corruption cases for example, has rendered the national mass largely apathetic to the government’s pronouncements about fighting corruption.
As long as investigators of corruption wallow in obscurity of systemic operations, they will be incessantly lost in the sea of investigations. Corruption investigators need specialized training such as in forensic accounting, insider trading for stocks, public procurement framework, criminal procedure, offshore and international trade, tax law and the legal framework for corruption.
Such background training would solidify mental perspectives of investigators with a view to enhancing the probate value of collected evidence to be adduced before trial courts. This means that it would be useful to have complex investigations of criminal cases to be led by specialized teams that include prosecutors.
No doubt, at times investigations are hampered by state interference, and political factionalism, which always acts as a safety net especially for those implicated in corruption but are known to be close to ultimate wielders of political and State power.
When criminal investigations violate legal ethics, leading to legally inadmissible evidence at trial, or having investigations compromised, the whole process outcome end up insulting the integrity of judicial inquiry and public trust. Such facts necessitate the guidance of prosecutors in investigations so as to keep the investigation processes within the brackets of the law.
Prejudiced investigations make attendant investigators accessories in obstruction of justice due to diminished probative value of such scattered evidence being presented in trial courts.
It is helpful to have investigators standing up for integrity in the cycle of investigations. Additionally, there is need to have investigative agencies being evaluated periodically, for instance, after every three years, to determine the quantum of their professional ethics and successes.
There seems to be initial efforts towards this. According to the Office of Director of Public Prosecutions Annual Report Consolidated Report for years 2017/18, 2018/19, and 2019/20, the Office has among other strategies, adopted a prosecution guided investigations approach that involves collaboration with the investigative bodies during investigations, resulting in increased conviction rate in corruption cases from 37.4% in 2018 to 60 % in the first half of 2020. This has included high profile government officials.
This is a step in the right direction. However, it is imperative that the legislative framework should possibly be enhanced to amalgamate investigations and prosecution frameworks, so as to seal the existing loopholes and augment the existing efforts.
Mr Bigambo, a political scientist and lawyer, is managing consultant at Interthoughts Consulting