KAIKAI'S KICKER: Let’s give EACC powers to prosecute corruption cases

On my Kicker tonight, the so-called war on corruption was on the table at the Senate on Wednesday when a blame game ensued pitting the Ethics and Anti-Corruption Commission (EACC) against the Office of the Director of Public Prosecutions (ODPP).

The EACC, in an uncharacteristic moment of bravery, accused the ODPP of being the weakest link in the fight against corruption. EACC cited cases that have been withdrawn as proof that the ODPP is shortchanging Kenyans in the so-called war on corruption.

In a bold thread, the EACC accused the ODPP of withdrawing not less than 18 corruption cases in the last 9 years; 14 of those cases being dropped within the last two years alone. The EACC Chief Executive Officer Abdi Mohamud cited the withdrawal of cases against Tharaka Nithi Governor Muthomi Njuki and another against former Migori Governor Okoth Obado as instances where the ODPP has singularly frustrated the war on corruption.

Now, I intend not to take sides in this sea-level battle for the moral high ground between the EACC and ODPP; but as at now, the burden of disproving assertions made at the Senate rests squarely with the ODPP. And while at it, the EACC should as well have reminded Kenyans of the disgraceful handling of the Arror/Kimwarer case where several billions of taxpayers shillings disappeared into private pockets on the promise of construction of two hydropower dams in Elgeyo Marakwet County.

When the corruption case reached court, the ODPP listed 49 witnesses but ended up examining only 8 in a low energy display by the prosecution during the trial. The trial magistrate stunned. She did not mince her words. The prosecution’s approach, she said, was designed for failure. In a damning ruling, Magistrate Eunice Nyutu concluded that “there is a need to check the unfortunate and reckless habit of the ODPP commencing proceedings which they have no intention of pursuing to its logical conclusion…this appears to be a carefully choreographed prosecution-led acquittal.” And indeed, that is what Arror/Kimwarer was – a prosecution-fronted acquittal of corruption suspects.

Now, EACC is no saint on matters war on corruption either, but its Chairman, a man of the collar, Bishop David Oginde makes a valid point when he says it is time for the EACC to have prosecutorial powers. If not for anything else, prosecutorial powers will end the blame game between the ODPP and the EACC over prosecution of corruption. Each will now have the opportunity to be a strong or weak link without pointing fingers.

The model has also succeeded significantly in countries that have granted their anti-corruption bodies powers to prosecute. From Ghana to Botswana, Singapore to Indonesia efficiencies in fighting corruption have been pursued through the enabling of anti-corruption authorities with among other things, powers to investigate and prosecute. It is time to walk the full length in Kenya for the EACC.

Fears that prosecutorial powers can be abused should not override the hopes that prosecutorial powers can actually be used to fight corruption. Use is not abuse as long as it is backed by solid evidence. EACC argues that their evidence is rarely put into good use by the ODPP; and how best to fix that except giving the EACC the power to prosecute the case it investigates.