Document Link: Kenya Law & Justice Sector Note

Written sometime in 2022:

Author: Timothy Bryant, Advocate. Kenya has just finished its 2022 elections. The promise of change leads us to write the following.

Any past attempts in the economic sector to elevate Kenya into middle income nation status have floundered on the dire state of the country’s corruption sector. In fact, corruption is such a drain on its economic life presently that no sane investor will under the current scenario set up multi million dollar projects in Kenya unless the GOK is a partner therein. That is anathema to many investors weaned on the Chicago school & Friedman Milton’s economic theories, and thus Kenya has unwittingly achieved pariah status due to its inability to conquer the corruption dragon.

The international anti-corruption organization maintains that unless the President of the Republic is actively behind the drive, failure is guaranteed. Much ink has been spelt on thirty years of active failure in making a difference in corruption statistics in Kenya. We have a more radical solution, whose sine qua non is the participation of the Presidency.

The main institutions in Kenya that received the constitutional mandate to protect citizens life and property are the (i) Judiciary, (ii) the Police and (iii) Directorate of Public Prosecution (“DPP”). Without wanting to place lipstick on a pig, let us bluntly state that all three have and are continuing and shall continue to violate that constitutional trust in unimaginable ways. Bribed judges, bribed police and bribed prosecutors. What a disaster. Anyone denying this either is not engaged in service delivery in these sectors, lives with fairies or is a politician.

Our starting point is a task force of prosecutors and investigators [with different skill sets] be established having appropriate delegated powers. However, its chain of command should be the Director of the DPP and a liaison officer seconded to the Office of the President (“OP”) from the National Intelligence Service (“NIS”). 

Prerequisites are that there must a triad of State officers having oversight of the task force, with a minimum of monthly meetings. The President, the Director/DPP and the designate liaison officer OP/NIS (the “Triad”). The designate liaison officer must be based in OP due to sensitivity of the envisaged operations.

The work location of the task force must be secret. Its members must sign forms under the NIS Act swearing them to secrecy as to their job functions. All the members must be vetted by NIS with the NIS officials vetting also being sworn to secrecy and having to face immediate dismissal from the service should their vetting turn out to be the usual “kenyan” stuff.

The term of the task force should be for two years. Firearms, where judged appropriate, should be issued to the members. Its targets should be to plainly spelt out. These should be enforced by the Triad. We recommend the minima to be the  jailing of 20 judicial officers, 20 prosecutors, and 40 senior police officers for crimes of corruption. If after two years, these targets have not been met, the task force should be disbanded.

It should be obvious why the targeting of the three institutions. These are supposed to be the State’s teeth in the broader fight against corruption. But, if the teeth of a Simba are rotten, then surely, we all know that eventually the Simba will starve.

We also believe that once the news of the actual jailing of 80 State officers reaches the general public and the donor/investor community, the actual economic rewards that Kenya will reap will be greater than any amount of IMF begging, SAP programmes and other tools of the World elite to keep Kenya in poverty.

We further don’t need to emphasize because it should be obvious that the twinned issues of “rotting teeth” and “economic depression” are issues within the purview of a properly adjusted NIS. If NIS does not share that view, then we would recommend a radical house cleaning to begin there without delay.

All tools for the gathering of forensic evidence should be availed to the Task Force. In addition, the Director of the Task Force should have the rank of a Deputy Inspector General of the Police Service. The designate OP/NIS should be ex-military, at least at the level of the brigadier general.

These are the general outlines of what the Task Force should entail. We are always available for further consultation on a fee paying basis, should it be felt to be in the interest of the GOK.