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Human beings are generally wicked, biased and selfish in
nature.
Left to our own devices and driven by self-interest, society
would be a chaotic place.
Well, it still is but at least with a modicum of some order!
And that’s because there are established laws that regulate
human conduct.
These laws when put together form what is called a
Constitution.
Kenya is this week celebrating 10 years since the new
constitution 2010 came into effect on 27th August.
But is there much to celebrate? Has the document made a difference in the
lives of Kenyans?
I think it depends on whom you ask and the parameters you
use to make that judgement.
Looking at matters devolution, the constitution has indeed
led to devolved resources and services to the counties.
However, it has also introduced a lot of unforeseen
challenges such as human resource distribution, equitable sharing of funds among
the counties and gross mismanagement of devolved resources by counties.
Indeed, it has long
been echoed by pundits that we have not only devolved resources to counties but
also runaway corruption.
The number of graft cases involving governors is an obvious
pointer to the reeking rot in the counties.
In one of the cases, Governor Mike Sonko has been granted
opportunity to explore plea bargaining
following a Sh357 million graft case.
Earlier in the case, Sonko’s lawyer had argued that the
evidence against the governor had been gathered without due regard to the law citing
Article 50(4) of the Constitution and had asked the court to dismiss the case.
Basically, Governor Sonko could walk away free or with a
lighter sentence depending on his agreement with the DPP!
On the other hand, Governor Okoth Obado of Migori county and
other co-accused are facing jail time in a Sh73 million graft case.
The Governor with his four children could spend a good
number of years in prison for alleged theft of county funds.
These two cases are a litmus test on the criminal justice
system even as we celebrate 10 years of this Constitution.
Just a few months ago, Sirisia MP John Waluke was sentenced
to 67 years in jail or a fine of more
than a billion shillings in a Sh313 million graft case.
These differences in the way corruption cases are handled
are indicative of double standards when it comes to application of the law.
In fact, they seem to indicate that not all animals are
equal even under the new constitution!
And yet the Anti-Corruption and Economic Crimes Act 2019 was
enacted to act as a deterrence for
those who engage in corruption.
The Act states among other things that a person convicted
under the act shall be liable to a mandatory fine equal to twice the benefit
received or loss visited upon the public.
In other words, if Sonko was to be convicted under this Act,
he would be liable to pay a fine of not less than Sh714 million!
This is what has made MP John Waluke stay in remand until
now! The fine was too hefty.
That is the meaning of deterrence.
But looking at these three cases and the various treatments
accorded to each, one would obviously ask if they are prosecuted under the same
act and why there seems to be special treatment accorded to some of the accused
persons.
In my opinion, offering plea bargains to criminals cannot act
as a deterrence to corruption and economic crimes!
It is actually an obvious affront to the fight against
corruption and an incongruous attempt to sanitize criminality.
How do you ask a criminal to negotiate with proceeds of
crime in their possession?
Plea bargains are explored in instances where the State does
not have a strong case or as a way to get evidence from a key witness.
So long as the EACC and the DPP can prove their case, there
is no need for a plea bargain.
Let all criminals be called by their names – criminals. We
cannot have lawbreakers who still drive in big cars and live in palatial homes
with proceeds of crime.
Let them be stripped of their robes as custodians of public
resources just as the Ngiritas have been ordered by the courts to surrender proceeds of crime!
Public office is a place of serious responsibility and accountability.
It requires sobriety, fidelity to the law and good judgement.
It is a position of trust. Engaging in corruption and other
economic crimes is an abuse of trust that brings such offices into disrepute.
The law must remain a double-edged sword that cuts across
political divide and any other kind of status.
Anything that the law cannot equalize, no one else can! Economic
crimes just like other crimes like robbery, rape and drug peddling are very
grave offenses.
We cannot afford to treat accused persons differently under
the same law especially when we’re celebrating 10 years of this constitution.
It sends a bad message that we respect criminal hierarchies and
are therefore biased in dispensing justice!
Therefore, moving forward we must cease from this habit of
assigning status to criminal behaviour.
The public officer who ravages public coffers is not any
different from a common chicken thief.
The treatment accorded to both parties should be equal under
the law if not stiffer for the custodians of public trust!
There have also been allegations by MP John Waluke’s defense
that his case was politicised as the contract between his company Erad and NCPB
was a commercial transaction without criminal liability.
I believe the appeal’s court will be able to dispense with
that matter conclusively.
It also does not take a genius to understand that Sonko’s
corruption cases might have played a role in his deal to surrender the
management of the counties to the NMS.
In fact, his recent tiffs with the NMS boss alleging that he
has been side-lined in the issues of management of the Nairobi county are an
indicator that he put pen to paper without clearly reading and understanding
the implications of the NMS takeover!
These political machinations and the obvious pampering and
cosseting of criminal elements are an outright disgrace to a constitution that
took Kenya over 20 years to arrive at!
We must not water down this document through flimsy
judgements and yielding to criminals who have fattened their pockets with
public resources.
Both the spirit and the letter of the law are equally
important. But perception in public matters is everything!
If the perception of the public regarding the constitution
shows that we have become biased, selective and skewed in our application of
the law, the letter will suffer irreparable damage!
We must have the will to deal with matters corruption with
due regard to the law and taking into account public interest without blinking
an eye!
Katiba@10!
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