BY NGUNJIRI WAMBUGU
The ongoing public discussion on the Eurobond reminds me of a recent conversation I had with Interior Cabinet Secretary Joseph Nkaissery. The straight-shooting CS is quite unhappy about how Kenyans are allowing people to publicly accuse others of crimes, especially graft; and then it is up to the accused person to prove that what they have been accused of is not true.
The CS was especially upset by the fact that when he publicly pointed out how unfair this is and demanded that anyone making such accusations against another must record a police statement to that effect or be held accountable, he was publicly castigated for being against freedom of expression!
In ordinary circumstances when someone claims that another person has committed a crime they are required to record a formal statement or be held liable for slander, at least. In the statement they will provide evidence or sign an affidavit which ties them legally to their accusations.
However the burden of proof is always on the accuser, and the accused is assumed to be innocent until it can be proved otherwise. Where such proof lacks the person making the claim can be held liable for his allegations.
However Kenyans seem to have shifted this fundamental principle of law especially where the accused person is a public officer. We have transferred the burden of proof to the accused. We are practicing mob justice where all I have to do is shout ‘thief thief!’ and point at a public officer, and we will all immediately stone them to death; then ask for proof of what they had stolen!
Back to the Eurobond conversation.
Opposition leader Raila Odinga first sensationally claimed that the Sh250 billion the government raised from the Eurobond in 2014 was stolen even before it came to Kenya. No one asked him to prove his allegations. It became the responsibility of Treasury Cabinet Secretary Henry Rotich and his Permanent Secretary Kamau Thugge to prove that this was not true.
Even when the Auditor General and the Controller of Budget confirmed that the money had actually been received into the government’s official accounts we were still more inclined to go with Raila’s version of events. It made better headlines I guess.
Raila then changed his accusations and alleged that over half of the money collected had been stolen within Treasury. Again it became the responsibility of Treasury to refute these accusations, which they have gone to extreme levels to do in every public space they can access. The Treasury team even took the extraordinary step of inviting Raila Odinga to visit their offices so that the CS and his PS would walk him through every bit of the Eurobond process and provide any required documentation to prove that he is wrong.
However not only did Raila refuse to honour the invitation, he contemptuously claimed that as a former Prime Minister he cannot be ‘summoned’ by a Cabinet Secretary! He then made the ridiculous demand that the Treasury CS and his team take the documents to his private office! Amazingly no one called him out on what was clearly politics!
Kenyans have conveniently forgotten that expenditure of government money is tightly controlled under stringent rules, regulations, procedures and oversight protocols that include oversight by Parliament (where Raila’s political institutions are well represented), the Controller of Budget and the Auditor General. We are now behaving like that fellow who in 2010 sensationally claimed that the proposed constitution must be fine because ‘Baba has read it and said it is okay!’
The problem is that whereas mob justice might chase someone from office, to actually get someone punished for graft and recover looted public funds requires systematic case building and a conviction in court. This must start from a formal complaint where an accuser provides evidence, investigations and collection of evidence, and a court process. A conviction must also lead to sanctions. A good example is what happened in Senator Moses Wetangula’s case. He went through a court process up to the highest court of the land. He was found guilty of corruption during the election process. However rather than ask why Raila would rather fight Rotich who is at best a suspect than demand that Wetangula who has been formally convicted for it, be punished; we are told we are the ones playing politics with corruption!
The Director of Public Prosecutions must also stop being part of the problem. He cannot order the police and Ethics and Anti-Corruption Commission to open investigations based on allegations made in political rallies and press conferences; not unless he is also playing politics. Like Nkaissery he must demand that anyone making accusations against someone else should first formally record a statement with the police, or face formal sanctions for sensationalizing and politicizing the war against war.
Currently we are not fighting graft, just destroying public reputations for political purposes.
(Wambugu is a Director of Change Associates; a Political Consultancy).