Re­form DCI or for­get war on graft al­to­gether

Nairobi Law Monthly - - Checks And Balances - kevin@nairo­bi­law­monthly.com

Two days af­ter Anne Waig­uru re­tired as De­vo­lu­tion and Plan­ning Cab­i­net Sec­re­tary, Pres­i­dent Uhuru pre­sented a pas­sion­ate speech about the state of cor­rup­tion in the coun­try, in which he gave ten broad ac­tion points which he in­tends to pur­sue to end graft.

Sev­eral the­o­ries have been pro­posed as to the mo­ti­va­tion of that speech, and the reshuf­fling of Cab­i­net that fol­lowed a day later, not least that it was driven by Waig­uru's re­tire­ment – ar­guably his most pow­er­ful and trusted CS. Oth­ers have at­trib­uted to the Pope's visit last month – he did give a sim­i­larly charged ad­dress to the coun­try just be­fore Pres­i­dent Barack Obama's visit. Granted, Uhuru's aloof­ness to graft among his lieu­tenants had left even his own Cen­tral Kenya strong­hold dis­il­lu­sioned, which speaks to the heights the vice had taken, and he feared that he truly might have al­ready lost the 2017 elec­tion; How­ever, we will go on and give the Pres­i­dent the ben­e­fit of doubt and as­sume he was earnestly do­ing his work, and that he truly does want to head clean cab­i­net and de­liver on his pre- elec­tion prom­ises.

Mark­ing time

Two among Uhuru's ac­tion points stood out: a com­mit­ment by the Chief Jus­tice to es­tab­lish an Anti-cor­rup­tion Divi­sion at the High Court, and a charge to ex­ist­ing anti-graft agen­cies – the EACC, DCI, DPP and the As­set Re­cov­ery Agency– to both be­gin pros­e­cu­tions, and in­sti­tute pro­ceed­ings to re­cover stolen as­sets. And to demon­strate just how se­ri­ous he was, he went on to de­clare cor­rup­tion a na­tional se­cu­rity threat, ef­fec­tively rop­ing in the Na­tional In­tel­li­gence Ser­vices in the fight.

Great ac­tions points made, but with our ir­re­deemably cor­rupt Di­rec­torate of Crim­i­nal In­ves­ti­ga­tions Of­fice, the Pres­i­dent could find him­self mark­ing time. For as long as the DCI, for­merly CID, has ex­isted, its pre­fects have made it their busi­ness to en­sure its of­fi­cers wake up to serve Kenya's elite. When its di­rec­tor Ndegwa Muhoro was called in to look the loss of Sh791 mil­lion at the NYS, he is said to have di­rected his in­ves­ti­ga­tors to re­port di­rectly to CS Anne Waig­uru, as he did him­self. The right per­son to have re­ceived his re­ports was the DPP.

The DCI is the one body that can make all the dif­fer­ence in the fight against graft, but it re­mains un­apolo­get­i­cally in ser­vice to the political-pow­er­ful and wealthy. Muhoro has been ad­versely men­tioned in many of Kenya's scan­dals in­volv­ing the po­lice, out of which, be­cause of his con­nec­tions and in­flu­ence, he has al­ways man­aged to ex­tri­cate him­self. So say­ing, the lead­er­ship of the DCI does not in­spire con­fi­dence – es­pe­cially be­cause of its record in car­ry­ing out its man­date – or as­pire to cre­ate change in how crim­i­nal in­ves­ti­ga­tions are con­ducted in this coun­try.

Frus­trate pur­suit of jus­tice

The Di­rec­tor of Pub­lic Pros­e­cu­tions, Ke­ri­ako To­biko, for ex­am­ple, is on record as say­ing the DCI has reg­u­larly frus­trated his of­fice in the course of pur­su­ing civil and crim­i­nal jus­tice, ei­ther through cre­at­ing bu­reau­cratic road­blocks in the search for ev­i­dence, or de­lib­er­ately and sys­tem­at­i­cally stand­ing in the way of in­ves­ti­ga­tions. Nu­mer­ous court cases – civil, crim­i­nal and those in­volv­ing eco­nomic crimes – have been thrown out or de­clined by courts on tech­ni­cal grounds or ow­ing to lack of ev­i­dence and/or shoddy in­ves­ti­ga­tions – with reg­u­lar, al­beit in­di­rect, ad­mon­ishes from judges that in­ves­ti­ga­tors could have done a more dili­gent job.

Like in most other sec­tors, ap­point­ments to the DCI are made on the ba­sis of loy­al­ties to the pow­ers that be – a look at the his­tory of ap­point­ments since in­de­pen­dence will re­veal spe­cial links be­tween the heads of the po­lice, DCI and Na­tional In­tel­li­gence Ser­vice.

This is es­pe­cially un­for­tu­nate when it hap­pens at an in­sti­tu­tion as sen­si­tive as the DCI, where top of­fi­cers – when they are not sub­jected to proper vet­ting or when it is tailored to suit cer­tain pre­de­ter­mined can­di­dates – use their po­si­tions to trade in in­tel­li­gence which they can use to black­mail, ex­tort and ma­nip­u­late.

Our jus­tice sys­tem flawed, but a huge por­tion of this is at­trib­ut­able to the Di­rec­torate of Crim­i­nal In­ves­ti­ga­tions. As the Pres­i­dent rightly noted, Kenyans, for the first time in decades have at their dis­posal strong tools to de­mand ac­count­abil­ity. The DCI is a good place to start

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