By Miguna Miguna, Tuesday, September 6, 2011
Kenya’s a new Attorney General Githu Muigai declared shortly after
being sworn in that his first order of business would be to tackle old
corruption cases like Goldenberg and Anglo Leasing. ‘Amen,’ many
frustrated Kenyans might have sighed in relief; ‘at long last we shall
see some super con-men in the slumber!’ But not me. I found myself
instinctively asking “how?” How will he do that without prosecutorial
powers? And what about ‘new’ corruption?
It is understandable for a man who has been waiting since August last
year to assume the vaunted position of AG to be exuberant. Excitement
is a common human trait. As readers may recall, Githu is the only person
who survived the controversy surrounding the nominations by the
President of four persons to key constitutional posts earlier this year.
Undeniably, the nominations fundamentally breached the requirements of
both the National Accord and Reconciliation Act, 2008, and the
Constitution. They also breached basic rules and etiquette in coalition
management.
When the position of director of public prosecutions was eventually
advertised, Kioko Kilukumi who had earlier been nominated gave it a wide
berth – not because he wasn’t qualified for the job – but to acquit
himself of the allegation that he enjoyed the confidence of some very
powerful figures in government and that his nomination was part of a
well-crafted conspiracy to defeat the cause of justice. After all,
Kilukumi continues to represent some of those figures in various legal
matters, locally and internationally. Kilukumi was therefore wise not to
have sought the position.
Similarly, Githu, too, should have declined the position of AG. This
is, after all, a very delicate transitional period. Any reasonable
apprehension of bias on the part of a senior state officer who is
supposed to serve the public interest – and not that of parochial
political interests – would inevitably damage the image of that public
office and officer.
The AG’s core functions under the new constitution are to be the
principal legal adviser to the government and to represent the
government in all legal proceedings except criminal matters. In a
democracy, the government is the custodian of public interests. As such,
the AG’s primary duty is to serve and protect the public interests. In
other words, Githu’s ‘clients’ are first and foremost the people of
Kenya.
The new Constitution removed criminal prosecution from the AG and
placed it firmly under the director of public prosecutions. The DPP is a
constitutionally independent office. Unlike before, the DPP doesn’t
serve under the under the AG or the state law office.
How then is Githu going to tackle old corruption?
Perhaps Githu meant that he would give the government proper advice
on how to tackle old corruption. But he spoke in the first person and
emphasised what he would do as AG. He didn’t suggest that all he would
be doing is offering ‘advice,’ which clearly can be ignored. Was Githu
implying that the government neither knows of the old scams nor has
interest in tackling them?
It is difficult to imagine how the new AG will tackle old corruption
cases, unless he meant that all old cases of corruption will no longer
be prosecuted; that the government will henceforth concentrate on civil
recovery of stolen public wealth and do nothing else.
The person who should be prosecuting old and new corruption is the
DPP, Keraiko Tobiko. Unfortunately, we have heard and seen very little
of him since his appointment. Many of us don’t mind his silence if there
were ongoing credible prosecutions. But so far, there is none.
And now that Githu seems to be suggesting that prosecutions are in
his docket, notwithstanding the new Constitution, we have cause to be
very worried. By no means are we suggesting that forfeiture, restitution
and voluntary return of stolen public funds not be pursued by the AG.
All we are saying is that such civil actions must follow – and not be a
substitute – for criminal prosecutions of the looters, plunderers and
thieves.
We know that no effective prosecution will occur until and unless the
police and other investigatory organs are fully reformed, restructured
and retrained so as to enable credible and effective investigations.
Yet, the long-awaited police reforms aren’t taking place fast enough and
as required. Although we have been told that a panel to select nominees
for the director general and the two deputies will soon be appointed by
the President, we wish to point out that such an approach would go
against the provisions of the constitution.
In my view, the civilian-led national police service commission must
be formed first, as a matter of priority. It is this body that must
recruit the director general, the two deputy director generals and
senior officers before submitting names of nominees to the President and
the Prime Minister who will select appropriate candidates for
parliamentary approval. It’s also the NPSC that will ensure that the
institution is properly reformed and that high quality standards are
maintained in the police service. Then, of course, the DPP must
demonstrate that he has the ability, courage and commitment to fight
graft.
Unless this is done, all public declarations about the fight against
corruption will be nothing but rhetorical declarations. But make no
mistake: Kenyans will continue making demands and agitating for action
from the government against graft – old and new. Kenyans will continue
to pursue accountability and justice for the merchants of impunity. They
won’t be duped by promises and rhetoric.
Mr. Miguna is a Barrister and Solicitor in Ontario, Canada
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