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How the rich beat justice

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The arrest and arraignment of high-profile individuals over graft-related charges has often been marked with extensive publicity and fanfare, raising hopes among Kenyans that a lot of effort is being exerted to fight corruption.

Their lawyers will spend considerable effort using their best legal arguments to ensure their clients are released on bail.

After securing freedom, little comes out of the cases, as either they drag on forever, are terminated prematurely, or an acquittal is pronounced by the court “for lack of sufficient evidence”.

Prosecutors’ inability to secure timely convictions, or any at all, has mainly been blamed for the way most corruption cases are being handled, especially by investigators, police and prosecutors.

Some of the challenges range from lack of thorough investigations and overcrowded charge sheets to non-credible witnesses, and failure to comply with the law of evidence.

Law Society of Kenya President Allen Gichuhi says one of the persistent complaints is that where, say, five accused persons are charged with too many counts and prosecutors also line up too many witnesses, such a case ends up being convoluted.

“Some of the suggestions that have been made is the prosecution should sieve and identify the counts they are very confident they have all the evidence and can be concluded faster, then leave out the counts that are shaky, because at the end of the day, what matters is a conviction,” Mr Gichuhi.

The Director of Public Prosecutions (DPP) has also saddled the criminal registry with many accused persons who arguably ought to have been dealt with separately.

Lawyer Nelson Havi says the trial ends up with a scenario where there are more than 10 accused persons with one charge sheet and about 30 witnesses.

“It is improbable that such a case can be determined within a year,” he says.

Lawyer Harun Ndubi adds that when the DPP opts to charge everybody, two challenges arise. First, there will be no witness.

Secondly, if more than 10 accused persons are brought together in one charge sheet and each is entitled to a lawyer of their choice, there will be too many lawyers seeking to address the court.

It gets complicated managing those lawyers in terms of their submissions, particularly if some of the accused persons have hired the services of more than one lawyer and each wants to cross-examine witnesses and address the court.

“So you find that you have a logistical difficulty because even getting a date that is convenient to all those lawyers is very difficult. That is why some of those cases have been allocated dates of next year. Because lawyers’ diaries are already clogged for this year,” he says.

Equally, it does not make prudent use of the criminal justice system to have 10 lawyers against one prosecutor.

However prepared, such a prosecutor may be outmanned. Many of the people who appear as accused are actually witnesses, and the DPP should target the suspect that bears the highest responsibility for a suspected offence with the others engaged as witnesses.

“There are people who may have played a role but they are very resourceful; they have the information. They should be made state witnesses,” says lawyer Okweh Achiando.

In cases where all the people involved were charged, the State has often called witnesses from related departments but who were not directly involved in the matter and may not be very helpful to the case.

A senior DPP counsel, who shared the prosecution’s perspective on the matter on condition of anonymity, says they are left with no option but to bring many witnesses because they are required under the law to prove the obvious, even matters that are not contested.

“The law requires that we call witnesses to state even that which is not in dispute. This is the reason why we have so many witnesses, and you can see that takes a lot of time,” the DPP counsel said.

Further, looking at those charged with graft, if it is a company, it often comes out that all the accused had a role to play, and proving the charge of conspiracy will only require that all those involved be charged.

“We have been struggling with the issue, whether to prefer charges only to the main players in the offence. However, you find that each had a role to play and they all need to be charged so that we can demonstrate the chain leading to the offence,” the DPP counsel said.

Ever since the corruption division was created, many cases have been brought to court. DPP Noordin Haji has been particular that no one will be spared.

But his efforts are being constrained by the lack of capacity in terms of personnel and time to prepare.

There are approximately 900 State prosecutors against an ever-increasing number of corruption cases and others pending in court.

“Many of these white-collar crimes have very voluminous documents and need thorough review of the documentation for purposes of prosecution. This seldom happens, and often the prosecution ends up adding additional information as they go on with the trial. So they end up prosecuting a case piecemeal,” lawyer Havi said.

The law that clearly stipulates the rights enjoyed by all accused persons has also constrained the DPP’s free will in managing some of the suspects who bear the greatest responsibility, such as having them denied bail to deter others from engaging in graft.

This, in addition to the presumption of innocence until proven guilty, has seen courts release suspects on bail irrespective of the nature of the economic crime committed.

by nation.co.ke


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The life lessons I learnt from a brief stay with my grandfather

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With the schools closed, my parents got tired of me and my three siblings quarrelling and sent us to the village to stay with my grandparents.

More than any book or class, this visit taught me so much about appreciating what I have in my life and being open to the differences that I was blind to.

I protested going to the village at first, but now I am happy I did.

I had never liked being around my grandfather for so long because he is such a strict disciplinarian.

However, staying around him taught me why he is the way he is. He taught me about the value of hard work and integrity.

My grandfather is not one to stand lazy and idle people. So he taught me that I needed to structure my day to the tasks I needed to accomplish and spend time in the evening enjoying leisure.

So in this plan, we wake up in the morning to sweep the compound clean. My sisters then join my grandmother in the kitchen to make breakfast, as my brother and I help grandfather feed the cows before milking them.

Tending the animals

After breakfast, we would all go to the farm to weed. The afternoons were more of reading and playing. My brother soon gravitated towards tending the animals while I enjoyed working on the farm with my grandmother.

I also loved fetching water from the stream. We then spent the evening watching television to catch up with the news.

The discipline also made us more mindful about how our lives affected others, even when no one was watching.

We carried enough sanitisers and face masks to last us the duration of our imposed stay. We were careful because our grandparents were at that age of being vulnerable to the virus.

I noticed that many villagers were sceptical of the existence of Covid-19. They argued and dismissed the global pandemic as a hoax.

Some said they were yet to see anyone who had succumbed to the virus. Some were really tickled to see us donning face masks all the time, but we stayed true to the act knowing my grandparents’ lives depended on it.

This is how my grandfather raised my father and his eight siblings, and I am happy I got to learn this.

by nation.co.ke


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Foul smell leads to recovery of couple

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Crime Scene Tape
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Decomposing bodies of a couple that has been missing for more than a week were found in their house in Laini centre off the Nairobi-Nakuru highway, yesterday.

A foul smell emanating from the house of the 72-year-old-man and his wife, 62, led to their recovery. Police have launched investigations into the incident.

There were conflicting reports about the deaths with some claiming that the two were murdered while others suspected that they could have died of carbon monoxide emitted from a jiko.

Police declined to give names of the deceased until the next of kin are informed. Emotions ran high as locals viewed the bodies.

A village elder, Moses Mwathi, revealed that the couple was working in a quarry before they went missing.

Mwathi said neighbours thought that they had travelled to their rural home but got concerned after a foul smell started emanating from their house.

“On checking they noticed that the house was locked from inside and the bodies could be seen lying on their bed,” he said.

Police gained access into the house after breaking the door. The bodies were taken to the mortuary

Naivasha OCPD Samuel Waweru said initial investigations pointed to carbon monoxide poisoning from a jiko.

“We can’t, however, rule out murder at this moment and only a post-mortem examination will establish the real cause of the death,” said the police boss.

And in the nearby Kinungi village, a 35-year-old farmworker committed suicide by hanging himself in a house.

The body was found by his employer before police were called in. Jim Kimani, a friend to the deceased, said he was in low spirits over debts.

“He claimed that some people he owed money were harassing him but we never thought that he would commit suicide,” Kimani said.

by Standardmedia.co.ke


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LET’S HOLD HANDS WITH OPTIVEN FOUNDATION

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