FIGHT AGAINST CORRUPTION

MICHAEL OCHULA: Lawyering for the corrupt hindering graft war

The creation of a clean legal system is a compelling need, if the fight against corruption is to bear fruit

In Summary

• High-profile perpetrators of mega corruption undertake a cost benefit analysis of engaging in graft, taking into account any attendant legal consequences.

• They begin by planning how to get away with it in the event law enforcement agencies catch up, or how to navigate the judicial system for light or favourable sentences.

Winning the war on corruption
FIXING INSIDE OUT: Winning the war on corruption
Image: FILE

Corruption is one of the greatest challenges facing our country today.

Despite continued efforts to combat corruption, including conviction and imprisonment of hundreds of high-ranking government officials, politicians and private individuals, the quest to tame white-collar crime in Kenya remains an elusive goal to attain.

Notably, many people found guilty of corruption have shown no remorse or humiliation. Under such circumstances, even if all the graft suspects were arrested and brought to justice, there is no guarantee corruption would stop or be uprooted.

It is irresistible to opine that high-profile perpetrators of mega corruption undertake a cost benefit analysis of engaging in graft, taking into account any attendant legal consequences. They apparently begin by planning how to get away with it in the event law enforcement agencies catch up, or how to navigate the judicial system for light or favourable sentences.

An analysis of emerging trends and patterns reveal that most mega scandals are usually well planned and executed by well-organised cartels with roots spread across different institutions and sectors.

In some incidences, corruption cartels are so powerful and meticulous they, more often than not, operate as a parallel system of government. In such networks, one thing clearly stands out: That no single mega corruption scandal is planned or executed without the input of a professional at one stage or another. As part of perfecting their operations, corruption cartels run by professionals target their weaponry towards capturing justice systems and processes.

Effective anti-corruption strategies must, therefore, of necessity, focus on dismantling or disrupting the corruption networks as well as bolstering professional ethics and responsibility. Clearly, professionals in Kenya bear a significant portion of blame for the challenges that bedevil the country.

Some of them have contributed to impunity as opposed to advancing the rule of law as per their calling. Under the Advocates Act, legal professionals have a cardinal role in advancing the rule of law and public interest. However, majority of lawyers in Kenya have specialised as merchants of corruption and money laundering in the administration of justice, thus leading to denial of justice, human rights violations and general defilement of the law.

In this regard, the creation of a clean legal system is a compelling need, if the fight against corruption is to bear fruit. The fight will not be successful if the current integrity deficits among legal professionals remain unaddressed. This also applies to other law enforcers including judges, magistrates, prosecutors and legislators amongst others. In short, Kenya’s anti-corruption war will not be won unless and until the obstacles to the rule of law are removed.

Under the rule of law principle, the law (including the anti-corruption law) is enforced equally against everyone. Without the rule of law, there will be the “rule of force” and justice will be determined by how much power or influence a man holds or how much money he is willing to pay. The denial of the rule of law in preference for the rule of force will have its consequences. Without the rule of law, the rule of the jungle takes hold and the weak fall victim to the strong and nobody is safe.

Law is the very foundation of a peaceful and prosperous society, which we all can benefit from. It creates a disincentive for the corruptors or crooked people not to do what they want. The most fundamental requirement for us to uphold the rule of law is to have credible lawyers and lawmakers and law enforcers taking the lead in upholding and defending the law.

There will be no rule of law without credible lawyers who embrace honest living and are committed to promoting justice in all its facets. The absence of credible lawyers to carry out such mission presents a disincentive to corruption eradication. In the fight against corruption, lawyers are an important instrument because they are the key actors in our legal system, which is apparently not functioning properly.

They have a key role in the liberation of our country from the shackles of corruption and impunity All the government efforts in the fight against corruption and unethical conduct will fail if majority of lawyers take an opposing stance or act as onlookers.

It is regrettable to see more and more lawyers standing up, not to fight corruption, but “for” corrupt suspects instead. They appear to have no respect for their calling and conscience. The comforting news is that there are still thousands of lawyers out there who have the desire to combat corruption and create a clean legal environment. These lawyers should stand up and share the responsibility for combating corruption. It is not an easy task to execute, but it is also not impossible if they choose to work and fight together.

The writer is a governance expert

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