wao realy this goverment has let us down we thought will deliver but this is what he is doing shame on you. I for not voting for any of this corrupt leader pepo mbaya. they shoöu go home. instead of votinf for them i better not vote.
MIGUNA: ON THE FAILING WAR ON CORRUPTION (Read 515 times) adongo23456
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MIGUNA: ON THE FAILING WAR ON CORRUPTION
« Thread Started on Aug 30, 2011, 4:42pm »
The war against graft will not be won through churlishness
By Miguna Miguna – August 25, 2011
Another artificial storm is brewing. It’s been carefully crafted by the merchants of impunity to smother important issues and focus public attention and media hounds on the mundane. “PLO Lumumba must go!” That’s the new clarion call this week. The last two weeks, it was yours truly on the dock. They will create another phantom and bogeyman next week. The media frenzy and passionate theatrics among politicians are predictable but largely fake. When you boil it down to the bottom, all you get are a bunch of people driven by fear over their dodgy ways and selfish interests. Fortunately, the public is discerning, and not deceived.
The war against corruption is too big a thing to be left for comedians to play around with. Readers will recall that this column has previously called KACC director PLO Lumumba to account; not once but thrice this year. I didn’t do so for parochial reasons. I have no animus against PLO. Never did and never will.
However, I believe that PLO isn’t well equipped to fight graft in Kenya. He talks too much and does almost nothing to discharge his principal functions. I have previously questioned his loyalties and commitment to the war against grand corruption in view of his cosiness with people he should be investigating such as former president Daniel arap Moi, foreign minister Moses Wetangula – and now we understand – even assistant minister Cecelie Mbarire and her husband.
Why would PLO consort with suspects? It’s undeniable that PLO was made dean of Kabarak Law School by Moi weeks before his appointment as KACC director. Moi isn’t a fool. So, why did he give PLO a job, weeks before became KACC director? As I have pointed out before, the manner Moi acquired Kabarak and other assets need thorough investigations.
PLO has also been a close friend of Wetangula since their student days at the University of Nairobi. PLO knows that lots of Kenyans are aware of the ‘personal’ and the whispered “business” relationship between him and Wetangula. Yet, he, as KACC director, still presided over the wedding ceremony of Wetangula’s daughter when he was supposed to be investigating Wetangula and other senior ministry of foreign affairs’ officials for grand corruption.
The media is now awash with allegations and counter allegations of bribery, misdirected and aborted ‘sting’ operations that place PLO at the centre of ‘investigations’ by the CID and the KACC advisory board. We also know that Mbarire has sued PLO for defamation. He is now a defendant in a court case. Who will pay for his legal defence; the public? Will he “step aside” to allow investigations to occur given the fact that he heads KACC (or those “requirements” only apply to other people?)
PLO knows that he isn’t a competent investigator and couldn’t conduct a sting operation alone. When did he become an undercover detective? He must also know – even from reading detective novels and watching movies – that you never, ever call a press conference to “announce” an aborted ‘sting’ operation. It isn’t a sting operation unless and until it succeeds. In any event, the pictures Mbarire has unleashed, with copies of cheques and invitation cards convert PLO into an accused person. He cannot continue to preside over KACC!
And exactly what is the KACC advisory board supposed to be investigating? Does it have capacity and neutrality to conduct credible investigations? Essentially, this is tantamount to KACC investigating itself since the allegations made against PLO are actually advanced against KACC as an institution. That includes the advisory board. They, too, should be investigated! PLO’s failures and incompetence is also theirs. I wonder why the media isn’t screaming “conflict of interest” and “cover-up”; or should we make our own conclusions over their silence?
I haven’t read the version of the Ethics and Anti-Corruption bill Parliament is reported to have “passed” last week. The draft I looked at was fundamentally defective. The most glaring – and the flaw MPs are correctly complaining about – is the vesting of investigatory and prosecutorial powers in KACC. This feature is common in “inquisitorial” legal systems in Europe. But it’s alien to the Anglo-Saxon “common law,” which is what our legal system is.
Under common law, the fusion isn’t allowed. This is because investigators are required to comb “scenes” of “crime”, analyse facts, stories, events, people’s behaviour and circumstances surrounding the alleged crimes without bias before developing a theory about the “case.” However, once they develop a theory and conclude that there “is reasonable and probable cause to believe that a crime has been committed,” they are obligated to arrest, charge and take the alleged offenders to court.
Once charged, the prosecutors take over. However, they cannot and must not always believe everything the investigators say. Prosecutors must apply their training, skills and experience in the law to objectively and carefully evaluate the evidence presented in order to determine, firstly, whether indeed a crime has been committed as alleged; secondly, whether the evidence, as adduced, implicate the accused and to what degree; and thirdly, whether they can prove the case “beyond any reasonable doubt.”
Prosecutors must approach all cases with an open mind. They must always consider that everyone charged is presumed innocent until proven guilty through an impartial and fair trial by a competent court or tribunal. There is no presumption of guilt before trial. Prosecutors are under legal and ethical duty to ensure that all evidence – inculpatory and exculpatory – are carefully collected, preserved, analysed, weighed and determined during the entire judicial process. They must ensure that the rights of the accused are not violated, circumvented or ignored. Competent and ethical prosecutors know that subjecting accused persons to any unfair procedure forever taints the judicial process and undermines the administration of justice.
Therefore, investigatory and prosecutorial powers cannot and must never be combined. In my comments on the ethics and anti-corruption bill 2011, I underlined this point. I also emphasised the fact that the commission isn’t a court of law and cannot give itself judicial functions such as conducting warrantless searches, purporting to give arrested persons bail, et cetera. It shouldn’t also be granted power of clemency, pardons or amnesty. Bail can only be granted by courts. The Constitution vests clemency and pardons on the state president; not KACC.
The draft bill erroneously used both civil and criminal standards in determining guilt. It suggested that the proceedings by the Commission will be conducted under the Civil Procedure Rules and repeatedly indicated that the standard of proof is the civil “balance of probabilities” test. However, the “penalty” options of fines and/or custodial sentence up to five years implies “criminal” sanctions. This is a major contradiction.
If “corruption” is deemed a “crime” that deserves severe punishment, including but not limited to stiff penalties such as forfeiture, fines and long custodial sentences; it’s imperative that proceedings be conducted under the “criminal procedure rules.” Conviction for serious economic crimes such as racketeering, money laundering, bribery, etc, stigmatizes the criminal. Having a “criminal record” is one way of deterring crime. As such, it is important that proceedings under this legislation be capable of preventing further crimes, excluding the perpetrators from holding public office, etc. We can’t do that if the proceedings are “civil” in nature.
If prosecutions or proceedings are “criminal” in nature, then the standard of proof has to be “beyond any reasonable doubt.” Although the standard of proof is harder to satisfy, the punishment becomes stiffer and offers both specific and general deterrence. As well, the bill offered ridiculously lenient “fines,” making it easier for wealthy or clever thieves to keep most of the “loot” as long as they can pay Sh1 million. Those unable to produce such fines are scatted off to jail for five years! The bill should provide for minimum fines and custodial sentences for anyone found guilty of any corruption-related crime(s).
As well, there isn’t a clear demarcation or boundary between the commissioners and staff. The draft bill has not clearly separated the functions of the commissioners and the staff of the Commission. It is imperative that the Commissioners be responsible for oversight and policy direction. The staff, headed by the Secretary of the Commission, should be in charge of day-to-day running of the Commission. The position of “Director” should be redesignated as “Secretary.” The director cannot be responsible for staff and head the board. That gives one person too much power, creates and encourages conflicts of interest and infighting, thereby causing inefficiency.
I can see that the board is already angling to succeed itself. Why should it be allowed to do that? In my view, the Constitution doesn’t provide that either the board or the staff must automatically transit into the new body. Screening, vetting and evaluation are in order. Each individual board member and staff must be able to demonstrate his or her performance, competence, skills and suitability for continuance. There isn’t tenure in both jobs.
I believe that PLO, the current KACC board and senior staff may not be capable of fighting graft. However, due process must be followed to remove them. No one person should be targeted or singled out.
Mr. Miguna is a Barrister & Solicitor in Ontario, Canada
Raila has totally screwed himself in the way he has handled Miguna Miguna.
I believe Miguna was hounded out of office but he should also have been aware that a politically-connected job comes with risks.
wao realy this goverment has let us down we thought will deliver but this is what he is doing shame on you. I for not voting for any of this corrupt leader pepo mbaya. they shoöu go home. instead of votinf for them i better not vote.
MIGUNA: ON THE FAILING WAR ON CORRUPTION (Read 515 times) adongo23456
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MIGUNA: ON THE FAILING WAR ON CORRUPTION
« Thread Started on Aug 30, 2011, 4:42pm »
The war against graft will not be won through churlishness
By Miguna Miguna – August 25, 2011
Another artificial storm is brewing. It’s been carefully crafted by the merchants of impunity to smother important issues and focus public attention and media hounds on the mundane. “PLO Lumumba must go!” That’s the new clarion call this week. The last two weeks, it was yours truly on the dock. They will create another phantom and bogeyman next week. The media frenzy and passionate theatrics among politicians are predictable but largely fake. When you boil it down to the bottom, all you get are a bunch of people driven by fear over their dodgy ways and selfish interests. Fortunately, the public is discerning, and not deceived.
The war against corruption is too big a thing to be left for comedians to play around with. Readers will recall that this column has previously called KACC director PLO Lumumba to account; not once but thrice this year. I didn’t do so for parochial reasons. I have no animus against PLO. Never did and never will.
However, I believe that PLO isn’t well equipped to fight graft in Kenya. He talks too much and does almost nothing to discharge his principal functions. I have previously questioned his loyalties and commitment to the war against grand corruption in view of his cosiness with people he should be investigating such as former president Daniel arap Moi, foreign minister Moses Wetangula – and now we understand – even assistant minister Cecelie Mbarire and her husband.
Why would PLO consort with suspects? It’s undeniable that PLO was made dean of Kabarak Law School by Moi weeks before his appointment as KACC director. Moi isn’t a fool. So, why did he give PLO a job, weeks before became KACC director? As I have pointed out before, the manner Moi acquired Kabarak and other assets need thorough investigations.
PLO has also been a close friend of Wetangula since their student days at the University of Nairobi. PLO knows that lots of Kenyans are aware of the ‘personal’ and the whispered “business” relationship between him and Wetangula. Yet, he, as KACC director, still presided over the wedding ceremony of Wetangula’s daughter when he was supposed to be investigating Wetangula and other senior ministry of foreign affairs’ officials for grand corruption.
The media is now awash with allegations and counter allegations of bribery, misdirected and aborted ‘sting’ operations that place PLO at the centre of ‘investigations’ by the CID and the KACC advisory board. We also know that Mbarire has sued PLO for defamation. He is now a defendant in a court case. Who will pay for his legal defence; the public? Will he “step aside” to allow investigations to occur given the fact that he heads KACC (or those “requirements” only apply to other people?)
PLO knows that he isn’t a competent investigator and couldn’t conduct a sting operation alone. When did he become an undercover detective? He must also know – even from reading detective novels and watching movies – that you never, ever call a press conference to “announce” an aborted ‘sting’ operation. It isn’t a sting operation unless and until it succeeds. In any event, the pictures Mbarire has unleashed, with copies of cheques and invitation cards convert PLO into an accused person. He cannot continue to preside over KACC!
And exactly what is the KACC advisory board supposed to be investigating? Does it have capacity and neutrality to conduct credible investigations? Essentially, this is tantamount to KACC investigating itself since the allegations made against PLO are actually advanced against KACC as an institution. That includes the advisory board. They, too, should be investigated! PLO’s failures and incompetence is also theirs. I wonder why the media isn’t screaming “conflict of interest” and “cover-up”; or should we make our own conclusions over their silence?
I haven’t read the version of the Ethics and Anti-Corruption bill Parliament is reported to have “passed” last week. The draft I looked at was fundamentally defective. The most glaring – and the flaw MPs are correctly complaining about – is the vesting of investigatory and prosecutorial powers in KACC. This feature is common in “inquisitorial” legal systems in Europe. But it’s alien to the Anglo-Saxon “common law,” which is what our legal system is.
Under common law, the fusion isn’t allowed. This is because investigators are required to comb “scenes” of “crime”, analyse facts, stories, events, people’s behaviour and circumstances surrounding the alleged crimes without bias before developing a theory about the “case.” However, once they develop a theory and conclude that there “is reasonable and probable cause to believe that a crime has been committed,” they are obligated to arrest, charge and take the alleged offenders to court.
Once charged, the prosecutors take over. However, they cannot and must not always believe everything the investigators say. Prosecutors must apply their training, skills and experience in the law to objectively and carefully evaluate the evidence presented in order to determine, firstly, whether indeed a crime has been committed as alleged; secondly, whether the evidence, as adduced, implicate the accused and to what degree; and thirdly, whether they can prove the case “beyond any reasonable doubt.”
Prosecutors must approach all cases with an open mind. They must always consider that everyone charged is presumed innocent until proven guilty through an impartial and fair trial by a competent court or tribunal. There is no presumption of guilt before trial. Prosecutors are under legal and ethical duty to ensure that all evidence – inculpatory and exculpatory – are carefully collected, preserved, analysed, weighed and determined during the entire judicial process. They must ensure that the rights of the accused are not violated, circumvented or ignored. Competent and ethical prosecutors know that subjecting accused persons to any unfair procedure forever taints the judicial process and undermines the administration of justice.
Therefore, investigatory and prosecutorial powers cannot and must never be combined. In my comments on the ethics and anti-corruption bill 2011, I underlined this point. I also emphasised the fact that the commission isn’t a court of law and cannot give itself judicial functions such as conducting warrantless searches, purporting to give arrested persons bail, et cetera. It shouldn’t also be granted power of clemency, pardons or amnesty. Bail can only be granted by courts. The Constitution vests clemency and pardons on the state president; not KACC.
The draft bill erroneously used both civil and criminal standards in determining guilt. It suggested that the proceedings by the Commission will be conducted under the Civil Procedure Rules and repeatedly indicated that the standard of proof is the civil “balance of probabilities” test. However, the “penalty” options of fines and/or custodial sentence up to five years implies “criminal” sanctions. This is a major contradiction.
If “corruption” is deemed a “crime” that deserves severe punishment, including but not limited to stiff penalties such as forfeiture, fines and long custodial sentences; it’s imperative that proceedings be conducted under the “criminal procedure rules.” Conviction for serious economic crimes such as racketeering, money laundering, bribery, etc, stigmatizes the criminal. Having a “criminal record” is one way of deterring crime. As such, it is important that proceedings under this legislation be capable of preventing further crimes, excluding the perpetrators from holding public office, etc. We can’t do that if the proceedings are “civil” in nature.
If prosecutions or proceedings are “criminal” in nature, then the standard of proof has to be “beyond any reasonable doubt.” Although the standard of proof is harder to satisfy, the punishment becomes stiffer and offers both specific and general deterrence. As well, the bill offered ridiculously lenient “fines,” making it easier for wealthy or clever thieves to keep most of the “loot” as long as they can pay Sh1 million. Those unable to produce such fines are scatted off to jail for five years! The bill should provide for minimum fines and custodial sentences for anyone found guilty of any corruption-related crime(s).
As well, there isn’t a clear demarcation or boundary between the commissioners and staff. The draft bill has not clearly separated the functions of the commissioners and the staff of the Commission. It is imperative that the Commissioners be responsible for oversight and policy direction. The staff, headed by the Secretary of the Commission, should be in charge of day-to-day running of the Commission. The position of “Director” should be redesignated as “Secretary.” The director cannot be responsible for staff and head the board. That gives one person too much power, creates and encourages conflicts of interest and infighting, thereby causing inefficiency.
I can see that the board is already angling to succeed itself. Why should it be allowed to do that? In my view, the Constitution doesn’t provide that either the board or the staff must automatically transit into the new body. Screening, vetting and evaluation are in order. Each individual board member and staff must be able to demonstrate his or her performance, competence, skills and suitability for continuance. There isn’t tenure in both jobs.
I believe that PLO, the current KACC board and senior staff may not be capable of fighting graft. However, due process must be followed to remove them. No one person should be targeted or singled out.
Mr. Miguna is a Barrister & Solicitor in Ontario, Canada
http://www.capitalfm.co.ke/news/2011/10/mps-hold-private-session-on-al-shabaab-onslaught/