KATIBA CORNER

New database to help document 'fight against corruption' in courts

A lot of secrecy is necessarily involved in investigating graft, right up to the moment when a person is arrested, or even until they appear in court

In Summary

• Transparency International Kenya recently launched the ‘Rada Database’, which is the most comprehensive and ambitious attempt to track and document all cases on corruption processed through the courts

•  Its ambition is also to track all the cases that are under investigation or prosecution and to understand the paths they travel through the legal system while learning from different milestones

The Supreme Court.
The Supreme Court.

The government insists it is fighting corruption, and for a while, the directors of Criminal Investigations and of Public Prosecutions became national heroes.

After a while, however, Kenyans have begun to fear that, despite dramatic scenes of arrests of often prominent people and their appearances in court, the “fight” is not going to be won.

Then we witnessed the uninformative sight of DPP Noordin Haji and Chief Justice David Maraga, exchanging recriminations. The DPP complained about accused individuals being granted bail too freely, including being able to go back to their offices while on bail, about injunctions from courts to hold up proceedings, in effect blaming the courts for slowing progress. The Chief Justice hit back, criticising the prosecution for the way they prepare and present cases in court.

On Thursday this week, the Star reported that “State now seeks divine help to fight graft”, showing DCI George Kinoti, the DPP and EACC chairman Eliud Wabukala at a meeting with religious leaders. It turned out that they wanted rather more worldly help, for religious leaders not to accept donations of dubious origin, and to sensitise congregations about the evils of corruption and the nature of the battle against it.

A lot of secrecy is necessarily involved in investigating corruption, right up to the moment when a person is arrested, or even until they appear in court. Generally, court proceedings are supposed to be in public. At this stage, we should learn what the allegations are, and how convincing the evidence is.

Yet most people do not have the time or the inclination to sit in court, and listen to lawyers exchanging puzzling arguments, nor do they even know when and where this piece of legal theatre is going to take place.

Often the media do not fully understand what has gone on in court. And since the trials are in magistrates courts, even the tech-savvy concerned citizen will be unable to find the court decisions in online databases. It all happens rather “under the radar”.

ENTER RADA

Have you wondered if there was a database or website that could provide you with comprehensive information about concluded or ongoing cases in our courts? Have you wished you could at the click of a button tell how long, on average a corruption case takes from the time a person is charged to the time of conviction or acquittal? Or even wished you could tell the age brackets and gender of corruption suspects and convicts? We might have an answer for you.

Transparency International Kenya recently launched the ‘Rada Database’, which is the most comprehensive and ambitious attempt to track and document all cases on corruption processed through the courts.

Its ambition is also to track all the cases that are under investigation or prosecution and to understand the paths they travel through the legal system while learning from different milestones.

The Rada Database is informed by the need to use technology and access to information to make it possible to answer a myriad of questions through analytics drawing from a comprehensive database of corruption cases in Kenya.

The database tracks as many variables and parameters as possible to help the curious researcher, journalist, policymaker or just interested citizen draw insights from the data on the fight against corruption through the law enforcement lens. With regard to the Judiciary, the database allows decision-makers to use insights from the analytics to better manage corruption cases within the courts.

The database also tracks persons mentioned in the Auditor General’s reports. Under this category, the ambition is to create a searchable database of all persons under whose watch resources were not accounted for. The objective is to make sure Kenyans can in one place get to know those state and public officers with whom they have entrusted leadership and managerial responsibility but who have not fully complied with constitutional and statutory public finance management principles, including in procurement and disposal of public assets.

The potential uses of the database are many. It is first a source of information that would interest researchers, policymakers and decision-makers. Within the context of appointment to public office, it’s a source of information that could help in the vetting of public officers nominated into public office or candidates offering themselves for election into the presidency, gubernatorial seats, parliament or county assemblies.

The inspiration for the database comes partly from a high-profile campaign that TI Kenya with partners in the National Integrity Alliance ran in the lead up to the elections in 2017. This campaign sought to raise integrity as a key elections issue by drawing up a list of candidates who were facing cases or investigations of an integrity nature.

We held the considered view they were ineligible to be candidates under Chapter Six of the constitution (Leadership and Integrity). The information was drawn purely from public documents, ranging from reports of the Ethics and Anti-Corruption Commission, the National Assembly, the Senate and the Auditor General’s reports.

The database is still work in progress. It now has slightly above 100 cases, mostly those that have already been concluded. It is estimated that no more than 600 corruption cases have been processed through the courts. The bulk of these are heard and determined in the magistrates’ court. These files, as far as we understand from the Judiciary, have no digital back up and the proceedings are gone forever. For cases in the High Court, the Court of Appeal and the Supreme Court, the files are accessible, with many well documented by the public Kenya Law Reports.

CHALLENGES

The biggest challenge in developing this database has been accessing to information and documents. Because of the manual nature of our court documentation, physical files quickly fill up registries and after a number of years may be destroyed by the Judiciary to create more space.

For this reason, already some of the case files are not available for documentation, analysis and learning. Tracing files for cases already concluded from across the country is a herculean task. Without the excellent support provided by Registrars and Heads of Court Stations, it would have been impossible to make the progress made so far.

Second, proceedings are handwritten, necessitating costs in typing and authentication of the documents. This is particularly so for the cases filed in the magistrates’ courts which form the backbone of the criminal judicial system.

Another challenge relates to the files where the cases are ongoing. Concerns about compromising evidence and access to vital information that could compromise proceedings are high within the Judiciary. While the information we need for the database to be complete has nothing to do with sensitive information, it is contained in the same file as what the judiciary considers sensitive and hence only accessible to the prosecution and the defence. Information such as the names of the accused, the charges they face, the terms on which they have been released on bail or bond, if any, and adjournments, is what would be of interest to the researcher and the policymaker or decisionmaker. This information has largely been inaccessible to TI Kenya for ongoing cases.

A couple of insights are readily drawn from the database so far. It is quite clear now that over 90 per cent of corruption cases are determined within five years. Though this seems a long time, it is an improvement over the past. The authorities say they are working to improve it further. But Kenyans should remember that the process is not quick, if they are tempted to conclude the battle is already lost.

Again out of the persons charged in court from our sample, 80 per cent of them have been men.

Readers can interact with the database and give feedback through https://rada.tikenya.org and through email [email protected]

The author is Executive Director, Transparency International Kenya