• Handing over an arm of government to the whims of criminals, and having judges ruling without any moral compass threaten the very culture and existence of Kenya.
• There needs to be swift action to purge the institution of rogues and to ensure officers take their civic duty with the seriousness they swore to uphold.
In January 2020, Ibrahim Akasha, Kenya’s notorious drug lord and a member of the Akasha drug cartel, was sentenced to 23 years in prison in New York.
He was found guilty of crimes related to trafficking heroin, methamphetamine and other charges.
His sentencing came on the heels of his brother’s incarceration for 25 years in August 2019. Baktash Akasha was believed to be the leader of a drug cartel that engaged in extreme violence, murders spanning Kenya and East Africa.
The sentencings culminated decades of investigations into the network and several attempts to arrest the two brothers and their co-conspirators.
From court records in the Akasha trial, it has been revealed there exists data from messages, recorded conversations and emails spanning decades that link top government officials to the illegal drug trade.
Some officials from the Kenyan Judiciary, lawyers and prosecution are also linked to the cartel. It is this evidence that compelled the Akashas to plead guilty, in hopes of reduced sentences.
The reality of the illegal drug trade first hit the headlines in December 2004, when a haul of nearly 1,000kg of pure cocaine was seized in Kenya, the biggest haul in Africa at the time. The street value was estimated at nearly Sh6 billion.
What followed was a wide investigation of the source and suppliers of the haul and a conspiracy that at one point linked some high-profile government officials in Kenya.
In 2006, then DPP Keriako Tobiko ordered the burning of the haul under circumstances he termed shoddy police work, thus preventing a successful prosecution. The frustrations of the prosecution, amid demands for justice and claims of judicial corruption, left the nation in despair.
The burning of the haul meant the Akasha drug dealers were confident their firm connections across their network would not only keep them out of jail in Kenya but also allow their poisonous trade to thrive.
Twelve years later, the same evidence, data and witnesses proved so weighty and overwhelming that the Akashas pleaded guilty, waiving their right to be considered innocent until proven guilty, resulting in hefty sentencing.
There are questions we must thus ask: Why were these cases not prosecuted and convictions secured in Kenya, despite the availability of evidence?
Is it that the threshold for prosecutions in the US is lower than in Kenya, or that the reach of the Akashas into the US judicial system was entirely non-existent?
Perhaps the answer lies in the high-profile cases brought before the courts by the EACC. A study published in 2014 by the University of Nairobi’s Catherine Mukunyi, said: “The legal framework, court rulings and slow judicial process have presented serious challenges to the effective execution of EACC mandate.”
Mukunyi, a scholar in criminology and social order, recommended: “Parliament should ensure there is an effective legal framework for the fight against corruption. The legislature should give the EACC the power to prosecute.”
The empowerment of the EACC and the DPP would certainly make a difference in meeting the threshold for the prosecution of cases, but it is clear there is need for the Judiciary to match their efforts.
By October 2016 'The Economic Survey 2016', presented data collected from the EACC and the Office of the DPP in 2014-15 that showed from the 5,551 cases the anti-graft agency investigated, it conveyed 117 cases to the ODPP.
But out of the 117 cases, the ODPP was only able to secure one conviction, which caused President Uhuru Kenyatta great frustration. And though DPP Noordin Haji in October 2019 said there was no bad blood between his office and the Judiciary, it is no secret there is a systemic failure that utterly hampers the course of justice.
“The criminal justice system is very clear that the investigators, the Office of the DPP and the Judiciary work independently. We understand that the hands of a magistrate or judge are tied to the evidence tabled,” he said at the time.
CORRUPT JUDICIAL OFFICERS
But if the evidence is consistent, and is the evidence brought before the US judicial system, then surely something else is amiss. Indeed, in November 2018, Haji said his investigators were closing in on judges reported to have been bribed to frustrate the extradition proceedings against the Akashas and they would be prosecuted.
“I stand vindicated and corrected. You just have to look at the Akasha case in New York. There are, and this will come out soon, judicial officers who are corrupt. Americans have evidence. I don’t think anyone will stand up and say we are revisiting,” Haji said at the time.
The Akashas case may be just the tip of the iceberg when it comes to the layers of corruption suspected to have pervaded the Judiciary. How many of the nearly 96 high-profile cases pending before court will truly be subjected to an honourable process and ruling?
The confessions by the Akashas ought to pull aside the veil. Citizens often feel there are special rules applied for the wealthy and powerful in criminal cases. They also feel that the US convictions of the Akashas, who lived fabulously wealthy lifestyles in Kenya, point to Kenya’s judicial failure.
They show that not only is the evidence being brought before the courts certainly meeting the threshold to prosecute and convict, but that court rulings upend that process regardless of the facts.
Critically, the exposure of the Judiciary to criminal networks and their influence represents an existential threat to the state. Handing over an arm of government to the whims of criminals, and having judges ruling without any moral compass threatens the very culture and existence of the Kenya we all live in. There needs to be swift action to purge the institution of rogues and to ensure officers take their civic duty with the seriousness accorded to creed.