- It is said in jest, and it could actually be true, that our sovereign debt equals what our political leadership and public servants have stolen since independence.
- The history of corruption, grabbing and wastage of national resources and outright thefts of such resources is well documented.
The Chapter 6 of our Constitution, on leadership and integrity, has become a great site of struggle in the implementation of our Constitution.
Recently, the vetting of Cabinet Secretaries by Parliament, and withdrawal of cases against some of them by the Director of Public Prosecutions, including one against the Deputy President, have taken the centre stage in our media.
I have always argued that if a political leadership that is not tainted by corruption implemented this chapter in our Constitution there would be many vacancies in the Executive, Parliament, Judiciary and many of the national institutions.
For Kenyans and the drafters of the 2010 Constitution, the chapter was enacted to give us a political leadership and a government of unimpeachable integrity.
The history of corruption, grabbing and wastage of national resources and outright thefts of such resources is well documented.
One needs to study the reports of the auditor general since independence as well as the various commissions of inquiry established to investigate the thieving and corruption since independence to understand the obvious purpose of this chapter.
It is said in jest, and it could actually be true, that our sovereign debt equals what our political leadership and public servants have stolen since independence. No Kenyan should be surprised that there has never been the political will to end corruption since independence.
In my view the High Court of Kenya gave us a constitutionally sound interpretation of Chapter 6. The Court of Appeal, however, overturned this decision. The appellants later withdrew the appeal at the Supreme Court.
Indeed, the bench of two judges of the apex court that allowed the appellants to withdraw their appeal failed to understand the essence of public interest litigation under the Constitution. The cause of action in public interest litigation continues and is not personal to the litigants.
The Supreme Court is yet to decide in a matter that would involve reviewing the decisions of the both the High Court and the Court of Appeal in the interpretation of this chapter.
Equally important is that the political consequences of the Supreme Court confirming the decision of the High Court, and overturning the decision of the Court of Appeal, are obvious.
Such a decision would, under the Constitution, amount to a judicial coup if petitions were filed in the High Court seeking to send home politicians, judges and other public servants who would be judged to have not complied with the chapter. Indeed, it is possible that there would a serious crisis of governance in the country.
Debate on the withdrawal of criminal cases
One needs to peruse Article 157 of the Constitution to get clarity in the current debate on the withdrawal of criminal cases against state and public officers. The powers of the Director of Public Prosecutions are decreed in the article.
It means the DPP has the power to direct the Inspector General of the National Police Service to investigate any information or allegation of criminal conduct.
Consequently, the IG shall comply with any such direction in her/his exercise of state powers of prosecution.
The IG can also take over and continue criminal proceedings in any court (other than a court martial) that have been instituted or undertaken by another person or authority with the permission of the person or authority.
She/he can discontinue at any stage before judgment is delivered any proceedings she/he has instituted or taken over. If there is a discontinuation of any proceedings takes place after the close of the prosecution’s case, the accused person shall be acquitted.
What the DPP must do
The DPP is accountable to Kenyans in her/his exercise of these constitutional powers. She/he must act in a transparent manner and show absolute fidelity to the Constitution.
In my view the current DPP has to do the following acts to come out clean in this debate.
First, he should make accessible the evidence in all the files pertaining to these prosecutions. He should not wait for Kenyans to petition the High Court, under Article 35, for their right to access the information he holds.
Second, he should state very clearly his constitutional and legal opinion on all the criminal matters in question.
Third, he should convince Kenyans that he is not acting under the direction or control of any person or authority.
Fourth, he should convince Kenyans that he is not engaged in an abuse of legal process, and that he is acting in the public interest.
Fifth, he should not seek to take over any private prosecution that any Kenyan can institute.
In the exercise of his powers in applying or interpreting the Constitution, the DPP is bound by national values and principles of governance under Article 10.
I have already mentioned transparency, participation of the people and accountability. One could add the rule of law, human rights of the suspects and complainants.
In my view, this matter of critical national interest can only be comprehensively handled if the debate we have had so far on the matter ceases to be as clean and clear as mud.
Let us have all the evidence out in the open. That is the only way justice will be done. Let us banish the politics of mtado and gossip in a matter of integrity and leadership under our Constitution.
The writer is the former Chief Justice and President of the Supreme Court