Some Kenyans may be feeling a sense of “déju vu” — we’ve seen this before.
We have the Director of Public Prosecutions complaining that the courts are releasing on bail high profile suspects in corruption cases, who promptly interfere with the evidence (not to mention the President fulminating about “ridiculously low bail terms”).
On the other hand, we have the Chief Justice blaming the DPP for not producing enough evidence to make it possible for the courts to convict. Victor Ndula’s cartoon in this paper last Tuesday summed it up nicely.
It is all a bit reminiscent of the days when the EACC (or its predecessor) would whinge about having sent perfectly good files of evidence to the DPP who did nothing with them, while the DPP complained that the evidence presented was not strong enough.
Maybe this week the DPP is feeling justified: A computer with vital evidence about SGR compensation payments disappeared from the offices of the National Land Commission.
And the media are hinting that this is not unconnected with the courts having ruled that the NLC chairman, who has been charged, maybe in connection with those very payments, was allowed by a court to return to work.
Are we, however, not entitled to wonder whether DCI George Kinoti can explain how such vital evidence, if that is what it is, has been allowed to remain in the clutches of the NLC? How can people ever be convicted if the police have neither the wit nor competence to secure the evidence? How do they even arrest people if they do not yet have control of the evidence?
BAIL AND THE PRESUMPTION OF INNOCENCE
The Constitution says everyone arrested has the right to be released on bail unless there are “compelling reasons” for them not to be. It is the job of the prosecution (the DPP’s department) to convince the court that compelling reasons exist.
It is understandable that, with the tidal wave of media reporting about corruption, and the excitement generated by the protestations by President Uhuru Kenyatta, Kinoti and DPP Noordin Haji about nailing the culprits, that the public tend to assume that anyone arrested is guilty. And to think of arrest and detention as being part of the punishment.
But it remains important that the principle of being innocent until proved guilty is preserved. Not convicting the innocent is as important as convicting the guilty.
It is ironic to find our President complaining about rulings based on the concept of the presumption of innocence. Five High Court judges held that, despite being charged before the International Criminal Court, Uhuru and DP William Ruto could not be prevented for standing for election in 2013 — because of the presumption of innocence.
The court quoted the distinguished and humane South African judge Albie Sachs. He said, “There is a paradox at the heart of all criminal procedure in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become.”
WHAT CAN BE ‘COMPELLING REASONS’?
The Constitution does not say what reasons are compelling, but there are bail guidelines for the courts suggesting that the main justifications for denying bail are: That the accused person would run away (which is apparently a significant problem), would intimidate witnesses or interfere with the evidence, or endanger someone, or the public, or commit a serious crime.
You can see immediately that this is a hard decision for a court to make: If it decides that one of these things might happen it is really saying that the accused person will behave like a guilty person. In other words it is to some extent pre-judging the result of the current trial.
However, perhaps courts could impose tougher terms on prominent, powerful accused persons, including staying away from their offices entirely.
It is not irrational to worry that a senior person in an organisation who is charged with a criminal offence connected with his or her work there might be tempted, if allowed back into the office, to try to minimise the risk of conviction for the crime. The DPP’s concern is understandable. He has argued that such people ought to be suspended from office until the trial is complete.
THE LAW ON SUSPENSION
The Constitution provides that, if formal proceedings are started for certain public officers to be removed from office for integrity, gross misbehaviour or incompetence, the President must suspend them from office while the process goes on. Those officers are judges, members of commissions and holders of constitutional offices, including the DPP. Half of the officer’s regular salary is also suspended.
Would it be constitutional to provide in law for suspension, even if the Constitution does not specifically allow it? The Public Service Commission Act and the Anti-corruption and Economic Crimes Act do this. The first says any public officer charged with a serious criminal offence must be suspended. The second notes any public officer or state officer charged with corruption or economic crime must be suspended until the case is concluded (provided it concludes within two years). The officer is on half pay during that time but with full allowances.
Does suspension from office violate a person’s right to be presumed innocent until found guilty? Some suspended county officers raised this before Justice Mumbi Ngugi a few years ago.
She said the ACECA was not unconstitutional, and insisted that suspension did not interfere with the right to a fair criminal trial. Incidentally, the accused were eventually acquitted, which is of course irrelevant to how they were treated beforehand, though it does suggest that the presumption of their innocence was not affected.
WHY ARE SUSPECTS NOT BEING SUSPENDED?
Though the Constitution does not provide for suspension because a criminal prosecution has been brought, the drafters clearly felt that suspension is sometimes justified. So why are people not being suspended?
The answer lies perhaps in ACECA itself: Its provision about suspension does not apply, if the Constitution says why and when the officer may be removed.
But the Constitution does not deal with the situation where the officer is charged with a crime – only where someone seeks the officer’s removal. Presumably the DPP wants to remove this exception in ACECA
And only a few state officers are protected from the impact of suspension under ACECA. Are others not being suspended? If not, why? Is one problem that the Act does not say who is to suspend them?
HOW ABOUT SUSPENDING PAY?
Hong Kong’s Court of Final Appeal decided a case about a police officer most of whose pay was stopped while he was on suspension because they were charged with a crime.
The court said that the right to be treated as innocent until proved guilty was violated, if the suspension of pay amounted to saying the Police Commissioner thought the officer
was
guilty of a crime. But, the court said, it indicated only that he thought he
might be
guilty.
It is only right to note that another distinguished and humane judge, Justice Bokhary, disagreed with the other judges and said that to withhold part of an officer’s pay during suspension was not consistent with the fundamental right to be presumed innocent.
And in South Africa, the Constitutional Court said, “Suspension without pay defies the exceedingly important
presumption of innocence
until proven guilty … and unfairly undermines the [suspended person’s] ability to challenge the validity of the
suspension
by withholding the salary and benefits.”
However, the South African law was different from ours: Suspending pay was decided by the minister, who also carried out the inquiry. So for the minister to suspend pay would suggest his or her mind was already made up about guilt.
And stopping pay of officers suspended is not in the South African Constitution-unlike ours.
Finally, even if suspending pay is problematic, suspending senior officers from work seems desirable, especially if the alleged offence is connected with that work.