At the close of 2006 the Kenyan President Mr. Mwai Kibaki gave assent to a new law to protect witnesses. The law meant to protect whistle blowers, especially in economic and corruption scandals, is hailed as the right step on the fight against corruption. But, unless the institutions with powers to investigate, prosecute and try corruption related offences do their work, the law will not achieve its objective of fighting corruption.
The Standard summarises key points saying that, “the law provides for the protection of witnesses in criminal cases including whistle blowers by concealing their identities so as to shield them from victimisation. It establishes a witness protection programme, which would be co-ordinated by the Attorney General on behalf of the police and other law enforcement agencies.
Under the programme, a new identity would be established for the witness and the person and his/her family relocated to guarantee their safety. It vests in the High Court the authority to order the appropriate officer to make new entries in the register of births, deaths or marriages.
The law imposes a sentence of seven years to any person convicted of blowing the cover of an individual who is a beneficiary of the programme. Among them include the nature of the risk posed and whether the witness, in view of his/her background or character, would pose a danger to society if shielded.”
In a situation where whistle blowers risked their lives and livelihood to report incidents of corruption in the public sector, the law was overdue. In 1993, a daring former employee of the Central Bank of Kenya, David Sadera Munyakei, provided Opposition MPs with documents detailing how Sh24 billion was siphoned from CBK in a week in 1993 through the bank’s pre-shipment finance scheme. The case of Munyakei, however, is tragic because he later lost his job and died 13 years later a dejected person. In the absence of this law then, Munyakei was exposed and he could not secure another job because his former employer would not give him a letter of recommendation.
The signing of the law is also seen as a victory for human rights organisations that have long campaigned to have whistleblowers protected by law. The matter, however, got a boost when the Commission of Inquiry into the Goldenberg Affair, recommended the enactment of the law in its report handed to the President early 2006.
Despite Munyeki risking his life and job, he died without those responsible for the scandal being held accountable. None of the culprits have been successfully prosecuted in a court of law. It is important to remind our readers that as important this law is in the fight against corruption, much will not be achieved as the public institutions responsible with investigation, prosecution and trial of corruption are not effective in their work.
The law therefore should shifts focus to the Kenya Anti-Corruption Commission (KAAC), the office of Attorney General and the Courts. These institutions have failed Munyeki and Kenyans in general. The rivalry existing between the KAAC and the office of Attorney General has impeded the prosecution of corruption cases. Instead of co-operation, the two institutions compete against each other hurling accusations and counter-accusations against each other. Recently, the public was treated to a drama where the KAAC had forwarded files of investigation and recommendation to prosecute only for the Attorney General to return them to the KAAC for further investigations. If the two co-operated at the investigation stage, the despicable drama would not have occurred.
To resolve the conflict, the powers of the two institutions should be clearly specified and where co-operation is required, it should be spelt out in the law to avoid misunderstandings. The current situation where the KAAC is responsible for investigation and the office of the Attorney General prosecutions is undesirable and creates unnecessary competition. The remuneration of officers in both institutions is also a source of the rivalry. The KAAC officers earn fat salaries while the pay for officers in the office of Attorney General are meagre. At the same time, those in the office of Attorney General feel superior, according to the law, to KAAC officers.
Even the few cases that reach the courts, they tend to prolong eternally. The accused use the loopholes existing in the law to prolong hearing by bring preliminarily applications and objections. Since the courts are already overburdened with workload the proceedings are not expediently dealt with. Recent changes that brought in strict rules and guidelines requiring judges and magistrates to speedily conclude cases do not seem to bear fruits. The rules require that preliminary objections should be dealt with within 45 days, and thereafter the suits to continue uninterrupted, are not followed by the courts remarked the Minister for Justice and Constitutional Affairs Ms Martha Karua. Notwithstanding the establishment of Special Courts in 2003 to try corruption cases, the delay in the cases is still inordinate.
The courts are in desparation because the human right objections used as delaying tactics cannot just be wished away. A line between individual rights and public interest in speedy conclusion of the cases has to be drawn. The duty to do so lies on the courts and they cannot delegate it.
The fight against corruption is not easy and the prosecution of corruption may not lead to fast and desirable results. Supplementary methods for resolving corruption are required. Karua has suggested a change of attitude and asked the public to join in the fight against graft. She said, "winning the war on corruption is not about the body count of how many people are in jail. What is important is to secure tomorrow and the future as you deal with the past.”
We support Karua’s assertion that change of heart and public participation are the key to eradication of corruption. Although there are many ways to achieve this, we think that education of the voters so as to reject corrupt leaders is the basis of the change of attitude and enlisting public participation.
The Standard summarises key points saying that, “the law provides for the protection of witnesses in criminal cases including whistle blowers by concealing their identities so as to shield them from victimisation. It establishes a witness protection programme, which would be co-ordinated by the Attorney General on behalf of the police and other law enforcement agencies.
Under the programme, a new identity would be established for the witness and the person and his/her family relocated to guarantee their safety. It vests in the High Court the authority to order the appropriate officer to make new entries in the register of births, deaths or marriages.
The law imposes a sentence of seven years to any person convicted of blowing the cover of an individual who is a beneficiary of the programme. Among them include the nature of the risk posed and whether the witness, in view of his/her background or character, would pose a danger to society if shielded.”
In a situation where whistle blowers risked their lives and livelihood to report incidents of corruption in the public sector, the law was overdue. In 1993, a daring former employee of the Central Bank of Kenya, David Sadera Munyakei, provided Opposition MPs with documents detailing how Sh24 billion was siphoned from CBK in a week in 1993 through the bank’s pre-shipment finance scheme. The case of Munyakei, however, is tragic because he later lost his job and died 13 years later a dejected person. In the absence of this law then, Munyakei was exposed and he could not secure another job because his former employer would not give him a letter of recommendation.
The signing of the law is also seen as a victory for human rights organisations that have long campaigned to have whistleblowers protected by law. The matter, however, got a boost when the Commission of Inquiry into the Goldenberg Affair, recommended the enactment of the law in its report handed to the President early 2006.
Despite Munyeki risking his life and job, he died without those responsible for the scandal being held accountable. None of the culprits have been successfully prosecuted in a court of law. It is important to remind our readers that as important this law is in the fight against corruption, much will not be achieved as the public institutions responsible with investigation, prosecution and trial of corruption are not effective in their work.
The law therefore should shifts focus to the Kenya Anti-Corruption Commission (KAAC), the office of Attorney General and the Courts. These institutions have failed Munyeki and Kenyans in general. The rivalry existing between the KAAC and the office of Attorney General has impeded the prosecution of corruption cases. Instead of co-operation, the two institutions compete against each other hurling accusations and counter-accusations against each other. Recently, the public was treated to a drama where the KAAC had forwarded files of investigation and recommendation to prosecute only for the Attorney General to return them to the KAAC for further investigations. If the two co-operated at the investigation stage, the despicable drama would not have occurred.
To resolve the conflict, the powers of the two institutions should be clearly specified and where co-operation is required, it should be spelt out in the law to avoid misunderstandings. The current situation where the KAAC is responsible for investigation and the office of the Attorney General prosecutions is undesirable and creates unnecessary competition. The remuneration of officers in both institutions is also a source of the rivalry. The KAAC officers earn fat salaries while the pay for officers in the office of Attorney General are meagre. At the same time, those in the office of Attorney General feel superior, according to the law, to KAAC officers.
Even the few cases that reach the courts, they tend to prolong eternally. The accused use the loopholes existing in the law to prolong hearing by bring preliminarily applications and objections. Since the courts are already overburdened with workload the proceedings are not expediently dealt with. Recent changes that brought in strict rules and guidelines requiring judges and magistrates to speedily conclude cases do not seem to bear fruits. The rules require that preliminary objections should be dealt with within 45 days, and thereafter the suits to continue uninterrupted, are not followed by the courts remarked the Minister for Justice and Constitutional Affairs Ms Martha Karua. Notwithstanding the establishment of Special Courts in 2003 to try corruption cases, the delay in the cases is still inordinate.
The courts are in desparation because the human right objections used as delaying tactics cannot just be wished away. A line between individual rights and public interest in speedy conclusion of the cases has to be drawn. The duty to do so lies on the courts and they cannot delegate it.
The fight against corruption is not easy and the prosecution of corruption may not lead to fast and desirable results. Supplementary methods for resolving corruption are required. Karua has suggested a change of attitude and asked the public to join in the fight against graft. She said, "winning the war on corruption is not about the body count of how many people are in jail. What is important is to secure tomorrow and the future as you deal with the past.”
We support Karua’s assertion that change of heart and public participation are the key to eradication of corruption. Although there are many ways to achieve this, we think that education of the voters so as to reject corrupt leaders is the basis of the change of attitude and enlisting public participation.
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