By Shadrack Sharu Muyesu
“Litigation must obey both substantive and procedural law, anything else only amounts to ‘woishe’ litigation for which the courts can do nothing apart from sympathise” – Elisha Zebedee Ongoya, Lawyer
Just ask one-time Thai supremo Thaksin Shinawatra about corruption and he will happily tell you about it. While his niece Ms Yingluck Shinawatra continues to cool her heels in a tough Thai remand facility, the old man is wanted back home for alleged corruption, money laundering and embezzlement, globe trots. A fugitive, he does everything possible to ensure that Thai authorities do not get to him, lest they fry him in the same pan they fried his niece. People are tired of corruption. Nations and organisations alike, everyone is doing everything they can to slay this monster. So serious is the matter that even innocents are suffering for seemingly abetting bad behaviour. Sunderland FC chairman didn’t need much persuasion to resign when it came to fore that her club had fielded an alleged sex offender in Adam Johnson. Closer home, a wily cat with 62 lives, Jacob Zuma survives, but only with a sail so punctured by unrelenting parliament reprimand that his ends seem more less about “when” than “whether”. As it was in the days of Richard Nixon and his Watergate scandal, the war on corruption isn’t afraid of the big boys anymore – well at least in every other place apart from Waiguru’s Kenya.
We want to do something. The President perhaps wants to do something as well. We make as if to do something only to remember that it’s a new constitution we are dealing with and therefore a new era where things are dealt with “constitutionally.”
We wouldn’t admit it but amidst the growing agitation is our secret hope that we could reverse the time banner to the pre-August 8 2010 days. In those days, all we needed to slay this rabid “corruption cartels” monster was a roadside directive, triumphantly pronounced by a Pompeii of a president to a chanting crowd that would guarantee “unemployment” for a thieving government minister and his incompetent public servant friend. But lo! We sacrificed our “right of way” at the altar of good practice in a “mzungu” constitution!
A question of procedure
The problem with this Constitution, as the learned lost would say, is that it’s too much on procedure and “boring” principles such as the rule of law and non-interference. After all, it is the same constitution that sets in place the Ethics and Anti-Corruption Commission (that “thing” that does not work) and with it a guiding Act that envisages a slow process of waging the corruption war. The experts had it that this war would begin with receipt of complaints by the commission followed by the assignment of officers to conduct a preliminary inquest that ought to mother the main investigation, should a prima facie case on an alleged corruption issue be raised. After such investigation, cushioned by the ambiguity of “without undue delay,” a file report is submitted to the Director of Public Prosecutions. It is the DPP that decides the fate of this file, whether to proceed the matter to a formal trial or ignore the file altogether for want of evidence. Forget about the Constitution; this is where the Devil really starts accosting us.
Role of the DPP
Wanjiku says no one is ever prosecuted. What Wanjiku doesn’t know is that there is not only a question of procedure but also very fundamental rules of procedure which, when not followed, cannot escape the advantageous exploitation of a well-paid lawyer. Such rules may be as summarised under Articles 47 and 48 of the Constitution. Indeed, courts have come out to say that the right to fair administrative action imposes a duty of observance on not only judicial and quasi-judicial bodies, but also those tasked with investigations that could potentially significantly affect the perception of the accused among the upright society, or even warrant the commencement of a prosecution (Re Pergamon Press Ltd  Ch. 388 and Petition no. 230 of 2015 Consolidated with Petition Nos. 305, 324 and 203 of 2015). In the latter case, being the matter of Eng. Michael Kamau and Charity Ngilu (remember them?) and10 others vs the EACC and 2 others, the court held the Ethics and Anti-Corruption Commission to be in fundamental breach of the petitioners’ right to fair administrative action in failing to give them a proper hearing at the investigation stage.
Simply put if you are a “thief”, the EACC should ask you to show cause as to why you are thieving. Not only so, but to also do it in a subtle manner – so the court opined.
Article 157 of the Constitution of Kenya 2010 creates the office of the DPP. Bestowed upon him are the powers to institute and undertake any criminal proceedings against any person and in any court other than a court martial in respect of any offence alleged to have been committed; to undertake and continue any criminal proceedings that may have been commenced by any person or authority in any court of law with the permission of that person or authority; and to discontinue proceedings at any stage before judgment for any such proceedings he takes over or institutes. We complain about the President yet this is the man we ought to have our sights trained on.
The Constitution has moved to protect the DPP by granting him total independence from any other entity, other than the Constitution, in the exercise of his functions.
Commendably though, there also exist checks and balances within the law to ensure that he does not abuse his office. The DPP cannot, for instance, issue a writ of nole prosequi without first informing the court. Most importantly, the DPP cannot commence proceedings against any person without a strong prima facie case. The Code for Prosecutors of the Crown Prosecution Service of the United Kingdom as reflected in our own prosecution policy, The National Prosecution Policy, revised in 2015, provides, inter alia that:
“Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.
The finding that there is a realistic prospect of conviction is based on the prosecutor’s objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which he or she might rely. It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty.”
In “R vs. Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001”, the position of the court was that “…a prudent and cautious prosecutor must demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution, otherwise the prosecution will be malicious and actionable” (emphasis is mine).
On the same matter in Michael Kamau (supra) the court reasoned thus:
“…criminal process ought to be invoked only where the prosecutor has a conviction that he has a prosecutable case. Whereas he does not have to have a fool proof case, he ought to have in his possession such evidence which, if believable, might reasonably lead to a conviction. He does not have to have evidence which discloses a prima facie case under Section 210 of the Criminal Procedure Code since a decision as to whether a prima facie case is disclosed is a jurisdiction reserved for the trial Court. He, however, must have evidence which satisfies him that his is a case which ought to be presented before a trial Court. He must therefore consider both incriminating and exculpatory evidence in arriving at discretion to charge the accused. Unless this standard is met, the Court may well be entitled to interfere with the discretion of the prosecutor since that discretion is not absolute…”
Curiously, in Michael Kamau, the court yet observed: “It must be acknowledged, from the many cases that are prosecuted successfully in this country, that we have excellent investigators and state prosecutors who painstakingly do their work, and do not effect an arrest or prosecution until they have sufficient evidence to present before a court. Such officers are to be commended, and encouraged. But we also have many others who arrest first, and seek to investigate later. This court does not need to emphasise that it undermines the administration of justice, and the public confidence in the justice system, when arrests are made and shoddy investigations undertaken.”
It stems from the above therefore that the DPP ought to be very careful about corruption files that he brings before the court. Incomplete files may not only mean an abuse of the court process that culminates in such a case being thrown out, but also to an action of malicious prosecution instituted against him.
In a rather perfect juxtapose, what is presumably the biggest success of the law as regards protection from any abuse of office, the independence of the office of the DPP in choosing which files warrant proceedings also presents its biggest problem, in that there is absolutely no modicum of determining whether dead investigations are actually dead because of the aforementioned reasons. Whether the previously stalled investigations are thus stalled for want of the evidence and not mala fides, we may never know. Indeed, no one can compel such an answer from the DPP. That is the sadness of the rule of law, procedure and non-interference!
Burden of proof
The law places the burden of proof on the prosecution demanding that in bribery claims, nexus be established between alleged bribery payment and the favour sought. It may not be enough to show the presence of unexplained assets. Indeed, for bribery cases, which by and large form an integral part of every corruption allegation, unexplained assets are only categorised under circumstantial evidence which, on its own, may not be enough to see through a successful prosecution. For any corruption case to stand a chance of successful prosecution, tacit understanding needs to exist between two persons where one agrees to offer a certain payment in order to obtain a certain benefit, from a public official acting in their official capacity. Such a benefit is not just a benefit for a specific professional engagement, but rather an undertaking that would constitute a breach of their professional code of ethics.
Most of the time, the only sure way of proving payments is by way of investigation of suspects’ bank accounts. Even then, one does not just appear before a magistrate ex parte and say that they need a warrant to look into a suspect’s account. Such an action must be influenced by reasonable suspicion based on facts that actually existed at the time of adopting the suspicion. And whether the facts actually existed at the time of making the suspicion may only be tested objectively by a court! What is common with Kenya is that many a time there is reasonable suspicion but no facts. But even reasonable suspicion is not enough. Such warrants must be properly obtained and pass the jurisdiction test. A mistake in obtaining a warrant has often times proved fatal to investigations. This was the jurisprudence of Lenaola in “Tom Ojienda T/a Tom Ojienda & Associates Advocates v Ethics and Anti-Corruption Commission & 5 Others  eKLR” buttressed by the High Court in Nyeri when it stopped the DPP and the EACC from arresting and prosecuting Murang’a Governor Mwangi wa Iria.
Role of the President
While we complain about the presidency, there is only so much the man can do. That is the sad fact of law. The roles and powers of the President are encapsulated under Articles 131 and 132 of the Constitution. The exercise of these powers has remained a subject of latent ambiguity. More specific to the fight against corruption, the power and role of the President is limited to the provisions of Article 131(1) (b) as read together with the subsequent Article 132 (3) (b&c). Protected within these provisions is the executive power of the President. It is this executive power that consistently evolves to the now (in)famous “executive orders” of the President. As to what really these executive orders are and the modicums of their exercise, our law remains painfully shallow. As Prof Ben Sihanya has argued, and as I indeed do argue, executive powers are basically policy-making powers. An executive order is therefore an order that the President may issue as a means to initiate, influence or direct policy. This interpretation is derived for the role that the executive arm generally plays, that of policy making.
Perhaps in further definition, executive orders are only constitutional when they are concisely on policy matters and not in any way creating or amending law or performing a judicial function in interpretation law, sentencing or punishing. The latter would constitute a blatant disregard of the doctrine of separation of powers. With several modifications, these has been the overall position taken by the Supreme Court of the US – a country with a system of government such as ours. This was the position taken by the Court in “Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)”. The position was slightly varied in “Vermont Yankee Nuclear Power Corp. v Natural Res. Def. Council, Inc., 435 U.S. 519 (1978)” where the Court upheld administrative procedural discretion by forbidding reviewing courts to impose procedures not required by statute. In “Motor Vehicle Mfrs. Ass’n v State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)”, the court called for a reviewing court to overturn agency action for arbitrariness, “…if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”
A problem arises, however, as regards the mode of exercise of these functions. While Article 131 foresees a “must” involvement of the deputy president and the cabinet secretaries in the creation of executive orders, Article 132 places such powers exclusively on the President. To the legal honchos, which article takes supremacy? Indeed, can an article of the Constitution supersede a subsequent article?
Even after the President issues policy directives, there is really not much else he can do since the only accountability the Constitution envisages is that given per article 95 (5), 152 and 153.
The cancer continues to gnaw upon us; meanwhile we can safely assume that, albeit “slowly”, the investigations continue. Why? The EACC can only stop investigations into a suspect through the process contemplated by Anti-Corruption and Economic Crimes Act Cap 65 in section 25A. Section 25A is very clear that investigations only stop when “a thief confesses and returns his loot” after which:
“The Commission shall publish its intention to make the undertaking by notice in at least two newspapers of national circulation— (a) stating the name of the proposed beneficiary of the undertaking; (b) stating the offence of which the person is suspected; (c) confirming that the person has fulfilled all the conditions set out in subsection (2); and (d) inviting any person with an objection to the proposed undertaking to forward their objections to the Commission within a period specified in the notice.”
Since, as stated, this has not happened the only logical conclusion is that investigations continue and files land on the DPP’s desk every single day. Ironically, for reason best known to the DPP, very few of these files get to court. Simply, the baton seems to be felled at the DPP. That could be our number one enemy in the fight against corruption!
Simply put, as long as it does not amount to creating or interpreting law, the President can only say, “this should be done!”. If that is not done, there is nothing else he can do since only the national assembly bears initial powers of removal. Even when removal lies within his mandate i.e. for other presidential appointees, the onus of investigation and prosecution lies solely on the EACC and the courts respectively. Even in this, the complex rules of procedure and the steep thresholds of evidence required in corruption and bribery matters ought not to be forgotten. While we may call for political responsibility, it is important we understand that the concepts of political responsibility only prescribe it as a remedy where the law is unclear on the ways of establishing the actual perpetrators of a wrong. In our instance, there is clear law. The President cannot be politically responsible when there is a body tasked with establishing criminal reasonability in place.