• While conviction rates for other criminal trials have been well over 90%, there have been worryingly low rates of convictions in corruption-related crimes with acquittal rates often higher.
• The DPP has adopted a new strategy where Prosecution guided investigations are the norm with prosecutors giving technical guidance to investigators in the course of their investigations.
Before amicus curiae became popular among Kenyans, there was nolle prosequi – that phrase we came to associate with the Attorney General whenever charges against some prominent pro-establishment guy were being withdrawn.
Today, the Office of the Director of Public Prosecutions is part and parcel of daily Kenyan conversations especially when it comes to the much-publicized War on Graft with prominent persons being charged in court with some high profile convictions seen recently.
While conviction rates for other criminal trials have been well over 90%, there have been worryingly low rates of convictions in corruption-related crimes with acquittal rates often higher.
This trend is rapidly changing. The recently released Annual Report of the Office of the Director of Public Prosecutions, 2020 demonstrates progressive increase in conviction rates in corruption trials obtained over the last three years from a low of 37.4 per cent in 2018 to a remarkable rate of 63.16 per cent in the first half of 2020.
During the half-year period up to June 2020, 26 cases were registered in court with 20 cases concluded despite the slowdown brought about by the COVID-19 pandemic containment measures. The monetary value involved in the cases registered in court from 2018 to June 2020 totals to Sh163.1 Billion.
This includes cases involving over Sh1 billion registered in court in 2020, Sh143 Billion registered in the year 2019 (including the ‘Arror and Kimwarer’ cases which involved approximately Sh63 billion) and Sh18 billion in 2018.
Out of these, cases involving Sh3.9 billion were concluded between January 2018 and June 2020 with convictions accounting for 91.9 per cent of the amount, acquittals 5.4 per cent and withdrawal 2.7 per cent. Cases pending before the court as at June 30, 2020, involve an amount totalling Sh224 billion.
For those of us who follow the American judicial system especially at the Federal level, it is noticeable how efficient prosecution-led investigations and consultative decisions to charge being made after rigorous investigations and evidence gathering.
This has not been the practice in Kenya. With the 2010 Constitution-making ODPP the sole body responsible for Public Prosecutions and significant investment in human resources and technology, DPP Haji has been able to implement a similar system here.
He has adopted a new strategy where Prosecution guided investigations are the norm with prosecutors giving technical guidance to investigators in the course of their investigations. Working together with other agencies under President Kenyatta’s Multi-Agency Task Team (MATT), the ODPP has been able to speed up investigations to ensure that justice is served quickly and efficiently.
As a result, MATT has been part of investigative teams led by the ODPP to ensure that all aspects of corruption cases are dealt with before prosecutions are initiated to ensure only those cases where evidence is air-tight are taken to court. As a result of this new approach, an impressive conviction rate has been seen over the last three years.
He has also adopted a holistic approach in the prosecution of corruption and economic crimes cases. These include the establishment of a specialized Division to handle Anti- Corruption cases, strategic focus on high impact cases and establishment of the Proceeds of Crime Recovery Unit to identify and recover proceeds of crime.
Other strategies include use of experts in various fields such as financial analysts, forensic experts and procurement experts among others; capacity building that includes training prosecutors in thematic areas involving corruption and economic crimes, the appointment of special prosecutors to provide expertise in complex cases and finally the adoption of the 'Follow the money approach,' which is aimed at disrupting the flow and distribution of proceeds of crime.
In corruption cases, the DPP has been prioritizing high impact cases - cases involving large sums of money, senior government officials (State and public officers) and/ or cases of significant public interest.
There was a total of 135 high impact cases involving more than 224 billion pending before the court as of June 30, 2020. At least 57 per cent of these cases were registered January 2018 and June 2020 while 43 per cent were registered before 2018.
Cases registered from 2018 to June 2020 involved amounts totalling to over Sh157 billion whereas those registered in 2017 and before involved amounts totalling to Sh67 billion. This is a clear illustration of the concerted effort put by ODPP in collaboration with stakeholders in the three years in the fight against graft.
The DPP acknowledges that effective and efficient prosecution of corruption and economic crimes cases is a result of the strengthened inter-agency collaboration and co-operation, application of prosecution guided investigations, capacity building and sensitization of prosecutors and investigators.
DPP should continue to pursue this multi-agency approach to identify challenges in the fight against corruption and recommend remedial measures. The War on Graft is firmly on course and DPP should be given support by all Kenyans of goodwill.
Dr Makodingo Washington is a Devolution and Governance Expert