Makodingo: Pausing prosecution of graft a mistake

For most of them, their cases are pending in court as the wheels of justice continue to turn slowly.

In Summary

•Free and fair elections must begin with freedom from corrupt financial flows.

•It does not matter how transparent IEBC is if illicit money will be allowed to influence voters’ choices.

A ballot box.
A ballot box.

On July 5, 2016, the then Director of the United States Federal Bureau of Investigations James Comey addressed a press conference in which he reported to the nation the progress made in the investigations of former Secretary of State Hillary Clinton.

Clinton had been accused of using personal e-mail servers during her tenure as Secretary of State. This was four months to that year’s election in which Clinton was a leading candidate.

In his release, they had found evidence that she indeed may have violated statute in how she handled classified information.

However, the FBI recommended no prosecution to the Department of Justice as they considered that no ill-will existed.

The case was considered closed. Despite that, her opponent Donald Trump latched onto this and branded Clinton as “Crooked Hillary” in every political rally he attended.

Clinton still seemed to weather the storm and took a commanding lead in the Presidential race. It could have ended there.

But just eleven days to the election, and with early voting already underway, James Comey wrote to Congress informing it that the FBI had reopened investigations into another set of Secretary Clinton’s e-mails.

Every news channel carried that headline as breaking news for the next eleven days. Many people, including Comey himself, admit that that decision may have swung the election in Donald Trump’s favour as public opinion turned against Clinton.

Here in Kenya, the Director of Public Prosecutions has recently been under fire for saying that the office shall not be prosecuting politicians for alleged corruption until after the elections to avoid a scenario like the above where his office actually influences election outcomes.

He stated that this has become the acceptable standard in the world where prosecutors do not bring corruption cases against candidates six months to elections.

In an official statement released on April 19, 2022, he said, “While the prosecution and fight against corruption remains a strategic focus, the office will not be a priority for the next three months”. Of course, the nation is outraged. An activist has even sued the DPP for favouritism in exercising his prosecutorial discretion.”

Over the years, Kenya’s War on Graft has registered great success. President Kenyatta’s Administration made the war on graft a campaign promise from the outset and has made tremendous progress in enabling this war, being a core pillar of his legacy agenda, especially over the last four years.

In that period, Kenyans have witnessed the arrests and prosecution of key public figures, a change from the elitist approach that characterised the past regimes.

Additionally, varied laws and legislations have been enacted and/or amended to aid the war on graft including; Access to Information, Elections Campaign Financing and Leadership and Integrity laws.

The government has also ratified key global and regional conventions with a myriad of undertakings at the international and national levels.

Their implementation has seen the institutionalization of Multi-Agency Teams which collectively continue to pursue anti-graft intiatives. 

Despite the above, there are still incidences that compromise the fight against corruption and the current political environment is one of them.

There are legitimate fears that the 2022 elections will give lifelines to a number of public figures already accused, charged or convicted of corruption.

Indeed, two former Governors who were removed from office for abuse of office are again candidates for Governor seats in this coming election and one of them has a legitimate chance of winning!!

A Member of Parliament convicted of corruption and released on bail is an aspirant for a major political party; a Principal Secretary accused of major corruption is a candidate for Senate.

For most of them, their cases are pending in court as the wheels of justice continue to turn slowly.  This will likely give them time to campaign and even win elections in the coming polls.

The ideal situation would be that those charged with corruption cases are barred from vying for elections to protect the integrity of the elections and the dignity of the offices for which the now want to occupy.

This is especially critical where corruption has diverted funds meant for development projects and led to loss of huge taxpayer funds.

Some of these moneys are now being used to influence voters to bring back these corrupt public officials to public offices that they should not even be eligible to occupy in the first place.

The decision by the DPP must therefore be examined in this context. Whereas the United States has a highly advanced election financing system where proceeds of crimes can easily be kept outside the electoral system at least for direct use by candidates, no such system exists here.

Aspirants and candidates, including those for the highest office in the land, regularly donate millions of shillings often from unexplained sources directly to voters, sometimes by the roadside as a way of endearing themselves to them.

Indeed, there are candidates whose only claim to fame is their generous use of cash, often from proceeds of crime.

One might then ask whether failure to prosecute these politicians in itself is actually influencing the outcome of the elections.

If they are going to use their ill-gotten wealth to literally buy their way into high office, does failing to act not influencing the elections in their favour when they should not be anywhere near public office?

Given that the constitution only bars those convicts who have exhausted all their avenues of appeal, negative public opinion and perception are the only realistic weapons wananchi have to vet some of these aspirants and candidates.

 One would imagine that public institutions charged with the responsibility of implementing Leadership and Integrity requirements would do more to shape this public opinion. Whereas crime does not expire and they can always be prosecuted at a later date, our experience is such that once they get to high office, it often becomes untenable to prosecute some of these individuals as they enjoy political patronage.

Perhaps we should now look up to wananchi  to be vigilant and hope that other agencies like those charged with implementing the Proceeds of Crime and Anti-Money Laundering Act will do more to limit flows of illicit cash into the forthcoming election campaigns.

This seems to be the only other avenue left for us especially when major political parties clear some of these candidates to run for office.

The August 9 elections will be a watershed moment for the country on matters integrity and one hopes that wananchi will reject some of these public miscreants seeking office to protect not just the integrity of the public offices but also public funds from falling into the wrong hands.

Even as this happens, the institutions charged with vetting of candidates should do more to hold politicians accountable for the sources of their campaign funds and how they use them.

The Independent Electoral and Boundaries Commission, in conjunction with the National Police Service and the ODPP should move with speed to ensure that voter bribery and undue influence does not go unpunished as the law already exists to deal with these cases.

Free and fair elections must begin with freedom from corrupt financial flows. It does not matter how transparent IEBC is if illicit money will be allowed to influence voters’ choices.

This is a fight for the soul of our country. If the law is too lenient on the perpetrators, we as voters must stand as the last line of defence for this country. We must say no to candidates with no integrity from getting elected into public office. It is the least we can do.

 Twitter: @makodingo

 E-Mail: [email protected]

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