WHAT IT MEANS TO WORK AS A PROSECUTOR

My job as a prosecutor entails prosecuting offenders, especially murderers. The police carry out investigations and then forward the file to me. After going through the file and being convinced that there is prima facie evidence implicating the accused in the murder of the deceased, I prepare an Information/Indictment/Charge sheet, file it in court and then get the accused arraigned before a judge.

After being informed why he or she is in court, an order is made for him or her to be taken for mental assessment and a date for taking of plea, mostly after two weeks, is scheduled. Once plea is taken, the court gives us the date when the hearing of the case is to commence.

I then liaise with the police to bring witnesses whom I take through exam-in-chief. It is at this stage that they tell the court what they know about what occurred. They are then cross-examined by the defence counsel after which I re-examine them if necessary. The number of witnesses differs from case to case. If at the end of the prosecution’s case, the court rules that the accused has a case to answer, a date is given for the accused to defend himself. 

At defence hearing, the defence counsel leads the accused through his defence after which I cross examine him to discredit his defence. He may be re-examined by his lawyer if need be. We then do final submissions and then wait for the judgment. Some have been acquitted and quite a number convicted and sentenced to death. Capital punishment is still lawful in Kenya even though, of late, there are debates to have it abolished.

The experience has been enriching and heart-wrenching at the same time. I come across cases where a child has killed his mother, a father has murdered his infant child, a man has brutally cut short the life of his wife and many other terrible stories. Some of the witnesses break into tears as they testify. There was a young lady whose boyfriend and father of her two weeks old baby murdered the baby girl because he was unable to take care of her. What a heart-rending story it was. An innocent life brutally cut short.  Getting the young lady to testify was an uphill task. She kept crying. I was moved to tears.

In the meantime I also undertake varying applications from the lower courts to the High Court. One such application are appeals from the rulings and judgments of the lower courts. Since the law permits parties to a suit in the lower court who are dissatisfied by the judgment or ruling of the said court to appeal, I am constantly confronted by diverse applications/appeals from the lower court. Each time such an application is lodged at the High Court, I usually apply to be furnished with the proceedings of the case in the lower court. After reading the said proceedings and the judgment I am able to elect as to whether to vociferously oppose the appeal or concede to the same. Most of the time, I oppose the appeals since there is always rock solid evidence implicating the appellant in the commission of the offence in question. But where the evidence is shaky and seriously in question I am always constrained to concede.

I have come across cases where accused persons have been framed by complainants. This is quite common in sexual offences. There are also cases where rather than amicably sort out mundane issues arising between them, family members rush to court to settle scores. In one such case a brother sued his brother for allegedly destroying his farm fence worth Ksh5,000. The case was heard by the lower court which eventually concluded that at the time the accused is said to have damaged his brother's property he was actually in Nairobi for a meeting. The accused even tabled bus tickets and hotel receipts to show that he had actually traveled. He was acquitted.

Dissatisfied with the court's finding, the wife of the complainant rushed to our office to plead with us to lodge an appeal. But going through the proceedings, it is sufficiently evident that the complainant's case was weak and can scarcely succeed on appeal. And mark you, the complainant has used much more than Ksh5,000, so far, in pursuit of what he considers to be justice. I later learned that the two brothers have had issues over ancestral land. The case of malicious damage to property is actually motivated by bottled up anger and recentment. It is quite unfortunate.

I have also had cases where accused persons threaten me through agents such as relatives.  Quite scary but all I do is pray and tell God to take care of me. I am also careful as to the places I go to. I spend much of my time indoors reading.

Procedure of handing over a suspect to ICC

Perhaps as a confirmation of the stern warning recently issued by Judge Chile Eboe-Osuji that serious action will be taken against anyone found to be interfering with witnesses in the Kenyan case at the ICC, the court issued a warrant of arrest for Kenyan journalist Walter Barasa on Wednesday.

Barasa is accused of being criminally responsible under Article 25(3)(a) of the Rome Statute as a direct perpetrator for the crime of corruptly influencing three prosecution witnesses by inducing them with millions of shillings so as not to testify against Deputy President William Ruto.

As the dust settles on the issuance of the warrant and in view of the fact that Parliament recently passed a motion aimed at pulling Kenya out of the Rome Statute, speculation is rife that the Kenyan government may or may not comply with the warrant. Matters are further complicated by the fact that in applying for the warrant, ICC Chief Prosecutor Fatou Bensouda pointed an accusing finger at a "circle of officials" within the Kenyan administration for working in cahoots with Barasa to dissuade witnesses from testifying in the Kenyan cases at the ICC.

Suffice it to point out that the issuance of a warrant of arrest and its subsequent execution is a matter of law. Consequently it is to the relevant laws that one should resort in an attempt to decipher the ICC warrant and its implications. Speculations not grounded in clear provisions of the law are immaterial. In this case the relevant laws are the Rome Statute, which establishes the ICC, the constitution and the International Crimes Act.

By virtue of Article 2(6) of the Kenyan constitution, the Rome Statute which Kenya has ratified is part and parcel of our laws. The Kenyan government is therefore obligated to comply with lawful rulings or directives issued by the ICC save in exceptional circumstances provided for in the Rome Statute and the International Crimes Act.

But most critical to the execution of the warrant issued against Barasa is the International Crimes Act. This is the Act that lays down the procedure to be followed in executing the warrant. Section 29 of of the Act stipulates that, once a request for surrender is received from the ICC, the relevant minister, who is presently the Attorney General, if satisfied that the request is supported by the relevant information required by the Rome Statute, has to notify a judge of the High Court in writing that a request has been made and ask the judge to issue a local warrant of arrest for the person whose surrender is sought. In conveying the notice to the judge, the AG is enjoined to furnish the judge with a copy of the request and supporting documents.

On receiving and interrogating the request and the supporting documents, the Judge may or may not issue a warrant. The Judge will issue the warrant if satisfied that the person against whom the warrant is sought is or is suspected to be in Kenya and that there are reasonable grounds to believe that a request for surrender has indeed been issued against the person in question. Alternatively, on considering the request and supporting documents, the judge may refuse to issue a warrant. The judge is, however, obligated to give reasons for the issuance or refusal to issue a warrant. Once the said person is arrested, he is taken before the high court to determine eligibility for surrender to the ICC. If in the opinion of the High Court, the person was properly arrested and is indeed the person against whom the ICC warrant was issued, he is eligible for surrender.

It is worthy of note that in proceedings to determine eligibility for surrender, the accused is not permitted to adduce evidence or defend himself against the accusations levelled against him. On determining that the said person is eligible for surrender, the High Court will issue a warrant for his detention and send a copy of the warrant of detention to the AG. The matter is then left in the hands of the AG to surrender the accused to the ICC. This is the procedure that will have to be followed in the Barasa case.

It therefore follows that the law enjoins the Kenyan government to surrender Barasa to the ICC. Whether the government is or is not willing to execute the warrant issued against Barasa is a different matter altogether. If the government goes ahead and surrenders him to the ICC, it will have acted in accordance with the law and cannot be faulted. A showdown with the ICC is, however, looming in the event that the government refuses to arrest and hand over Barasa to the court. If this will be the case, the court, in line with Article 87(7) of the Rome Statute, will make a finding to the effect that Kenya has refused to cooperate and thereafter refer the matter to the Assembly of State Parties.

What happens thereafter is entirely within the discretion of the state parties. As to what becomes of the warrant and its execution, only time will tell.

We all have a role to play in curbing terrorism

Two weeks have elapsed since the fateful Westgate terrorist attack that threw the country into mourning. Many Kenyans are still reeling from the unfortunate ramifications of the attack. Besides the many innocent lives that were brutally cut short and the survivors still nursing injuries, some families remain in the dark as to the whereabouts of their loved ones who are said to have been at the mall when the terrorists struck.My heart goes out to such.

Reactions to the attack have been varied. Whilst one school of thought has faulted the government for failing to deploy the expertise and facilities at its disposal to avert the attack another school of thought has absolved the government of any blame terming the attack as something that could have taken place even in the most advanced countries such as the US, the UK among others. Both groups have a point and cannot just be dismissed at a whim.

Be that as it may, there is no denying that we have been badly hit and as we count our losses and chart the way forward, trading blame is the least of what we need. Top on the list of what should preoccupy us is the measures that should be taken to stave off such attacks in the future. Admittedly, whatever measures we take may not completely obliterate the possibility of such attacks in the future but we can at least do something.Resigning to fate is not the way to go.

One key area to begin with is undertaking a thorough overhaul of our security and defence institutions. Much of what is amiss in our security system cannot be blamed on the new Jubilee regime. Jubilee will, however, be to blame if it fails to move with speed and correct what is wrong with our security institutions. Information doing rounds is to the effect that the approach adopted by our security forces in confronting the terrorists was characterised by much confusion.

Kenyans have learned with a sense of disbelief that officers from the General Service Unit, Recce squad, had at the initial stages of the attack brought the attackers under control and were on the verge of mollifying them. But when members of the Kenya Defence Forces arrived at the scene, a scuffle pitying the GSU against KDF ensued, affording the terrorists time to regroup and launch more attacks on civilians and security officers. It is even rumoured that some of the security officers who lost their lives in the fight were mowed down by their compatriots following disagreements on how to go about battling the terrorists.

To avoid such undesirable eventualities, the government should swiftly come up with a national security strategic plan. This will bring about establishment of a special anti-terrorism squad whose principal responsibility would be to combat terrorist activities. With the help of countries like Israel and the US which have been highly successful in truncating terrorist activities, members of this squad should be afforded the best training ever. This is the only squad that should be deployed whenever there is a terrorist attack unless circumstances demand otherwise.

It has also been argued that, haunted by unemployment and an inability to make ends meet, many Kenyan youth are being lured into terrorist groups such as the al Shabaab with promises of financial gain. This cannot be gainsaid in view of the burgeoning number of educated but unemployed youth. On joining these terror groups and being indoctrinated, these youth end up radicalised and are send back home to unleash terror such as was witnessed at the Westgate Shopping Mall. Urgent measures must be put in place to curb this trend of Kenyan youth joining terror groups.

Calls for the government to create more job opportunities are in order and should be encouraged. But the responsibility of improving the lot of Kenyan youth cannot just be left to the government alone. Other players such as churches, mosques, schools among others have a role to play in moulding the youth into responsible adults. Parents, churches, mosques and schools should take it upon themselves to inculcate in the youth values that will cushion them from corrupting influence. In the Holy Bible, precisely the book of Proverbs 22:6, it written that, train up a child in the way he should go and when he is old, he will not depart from it.

It also bears noting that a terrorist attack executed with the precision witnessed at Westgate takes quite a while to plan. This is why claims that the terrorists had rented a shop at the mall and had been strategising for a whole year are not far-fetched. It should, nonetheless, not be lost to us that the planning takes place in our midst and some of the people involved are our neighbours, brothers and sisters. Rather than wait until it is too late and start to heap blame on the government, Kenyans must readily share information about suspicious activities and people with the government. The government should in turn act forthwith on receiving such information.

Before letting out property to anyone, full disclosure of who they are, what they do, where they come from, their intention in leasing the property and other relevant information should be sought. We all have a role to play in curbing terrorism.

Is Parliament a graveyard for independent minds?

It was the late venerated British historian Lord Acton who quipped that, "Power tends to corrupt and absolute power corrupts absolutely". More than a century since his passing on, Lord Acton's words still ring true today as they did when he uttered them.

But nowhere else has the truism of Acton's words been remarkably demonstrated more than in Africa. Nearly all, if not all, African countries have, at some point in time, been led by people who, once in power, got drunk with power to a point of no return. Mesmerised by the trappings of power, these leaders have gone on to reign over their people with an iron fist. The saving grace has, however, been a few voices of reason who, at the expense of their own lives, have been daring enough to denounce the excesses of tyrants. It is to these gallant sons and daughters of our soil that the oppressed masses have always looked up to to register their disapproval of the sordid acts of the powers that be.

In the US, W.E.B Dubois, the first African-American to graduate with a doctorate from Harvard University, charismatic Baptist preacher Martin Luther King Junior, civil rights icon Rosa Parks and some other activists of note distinguished themselves as windows through which the world could have a glimpse at the plight of African-Americans. Luther paid the ultimate price when he was assassinated on April 4, 1968.

In Nigeria, in the face of the numerous despotic military regimes, the late Chinua Achebe, the late Ken Saro Wiwa, Wole Soyinka and a host of other tenacious Nigerians emerged as voices for the voiceless. Even when Achebe and Soyinka were banished into exile they remained unrelenting in speaking truth to power. They used every forum and their amazing mastery of written word to draw the world's attention to the leadership mess obtaining in their land of nativity.

Kenya has had the likes of Professor Ngugi wa Thiong'o, Koigi Wamwere, Raila Odinga, Dr Willy Mutunga, Kenneth Matiba, the late Prof Wangari Maathai and many others who paid a great price for denouncing the misdeeds of the Jomo Kenyatta and Moi regimes. Not even detentions without trial could dampen their resolve to advocate for good governance. To a large extent, these champions of reforms should be applauded for the relative rights and freedoms that Kenyans and the rest of Africans presently enjoy.

What should, nonetheless, be of concern to us is the alacrity with which hitherto celebrated defenders of human rights are converting themselves into unabashed apologists of the people in power. Kenya in particular, has seen many revered intellectuals transform themselves, overnight, into errand boys and girls of the country's top leadership, once elected to public office.

Take Parliament for instance. The March 4 general election saw some of the most brilliant and respected Kenyans elected to both the National Assembly and the Senate. Kenyans bristled with hope and anticipation when a significant number of men and women famed for their unflagging advocacy for sound governance and respect for human rights were voted to Parliament. But hardly a year into office, these intellectuals, some of whom are relatively young, are proving to be nothing but messengers of their political masters. Their independence of mind is now a thing of the past. Top on their list of priorities is doing their masters' bidding. The welfare of the electorate and the country are non-issues over which no time should be wasted.

Members of both the Senate and the National Assembly know that to guard against international crimes such as genocide, third world countries still vulnerable to the big man syndrome and whose institutions are still fledgling, need a court like the International Criminals Court. They are also pretty alive to the fact that such international tribunals are normally courts are complementary and hardly intervene in a country's affairs unless the most heinous crimes known to man have been committed and no remedial measures are taken by the country in question.

Despite being in knowledge all these, leading Senators and MPs are at the forefront of the campaign to pull Kenya out of the Rome Statute under which the ICC is formed. Their quest to withdraw from the ICC is informed by nothing but the fact that their bosses are before the court. Hardly a year ago, these are the same people that were shouting from the rooftops that justice for both the victims and perpetrators of the 2007-08 post-election violence should be done. All that is now in the past and what is key is to be seen to shouting loudest in discrediting the ICC so as to curry favour with the President and Deputy President.

That allocating more funds to county governments will bring about much development if the funds are well utilised is not in doubt. This explains why Governor Isaac Ruto's push for increased allocations to county governments is popular with the majority of Kenyans. At the initial stages of this push, some leading senators were also in support of the idea. But when they were summoned by their godfathers and warned against calling for a referendum to increase the allocation from the stipulated minimum of 15 per cent to 40 per cent, they retreated and are now vociferously opposed to the idea just to please their seniors.

Could it be true that Parliament has turned out to be a graveyard for the independent minded?

This article was published in the Star Newspaper on September 21, 2013