Punish those clearing dubious people to occupy public offices

The Director of Public Prosecutions has got his corrupt people and continues to reel them.

But in the buzz created by the arrests, one thing the DPP and the police have not addressed is the role played by vetting institutions and panels.

The public and state officials implicated in corruption had, at some point, been vetted and given the ‘all clear’ to stand up and be counted as leaders.

Which means they are considered individuals with probity, having passed the integrity test of Chapter Six of our Constitution with distinction!

How, then, do they end up being arraigned for gross theft, fraud and murder shortly after assuming office, and even after they produced certificates of good conduct?

A few of the agencies that are meant to clear individuals for political or public offices have been accused of turning a blind eye to individuals of dubious character.

CASE OF OMISSION

Legal duty of care is, sadly, not something taken seriously in this country.

For instance, unless Kenya Prison Services officials were in a coma for 19 years, I don’t see what else was so incapacitating that would lead them to not inform the authorities, during a certain individual’s vetting, of the fact that he was a convicted criminal and fugitive from the law.

This is a very serious case of omission. It’s one aspect of law that we rarely consider that could potentially create a stronger base for fighting corruption.

The country also witnessed last week how senators trooped into court to represent Nairobi Governor Mike Sonko during his arraignment.

The Senate has an oversight role to play on governors; why did they not sort out the mess at Nairobi City County that started with the deputy governorship wrangle and county speaker’s feud?

CONFLICT OF INTEREST

If senators had played their role well then, and in accordance with the law, Nairobi would not be in the mess it finds itself in.

Some senators, (I mean the lawyers in the Senate) are now ready to benefit financially from the mess they created of Nairobi by offering Sonko legal representation!

This is a conflict of interest juggernaut that needs to be tackled. Legally, such senators should be standing in court alongside Sonko to say why they failed to perform their legal duties.

An omission is failure to act. In criminal law, an omission will constitute an actus reus (criminal act) and gives rise to liability.

If one fails to act when expected to do so by law, they are to be held liable for omission.

This means one does not only punish those implicated in misrepresentation by using fraudulent academic papers, but also hold the issuer of the document liable.

But do we ever do that in Kenya? Instead, we would rather transfer wrongdoers or give fraudsters another opportunity to whitewash their criminal conduct.

APPORTION BLAME

The Treasury has been the latest body to transfer accountants instead of using that opportunity to sack those found to be complicit in the loss of public funds.

Stealing is gross misconduct and, without accountants, there would be no public funds processed. They, too, are liable — just as the CSs, PSs or parastatal chiefs facing corruption charges in court.

Omission is also behind the many buildings collapsing and killing innocent people every year.

Experts in the engineering and architectural fields have, regrettably, failed to take the lead in demanding better standards in the construction industry.

Kenya has an interesting way of describing loss (read theft) of documents or public funds. They always disappear mysteriously, but do they?

Just last week, two key pieces of evidence, relating to hate crime and a murder case, went missing from the courts.

DUTY OF CARE

Public funds missing from the accounting books or evidence missing from a court file would most likely involve human hands, legs and a corrupt mind, but not mystery.

Instead of dismissing criminal cases in court after crucial paper evidence is lost ‘mysteriously’ (note!), the responsible thing to do is go for the custodian of the funds, the keeper of the evidential material and the printer of fake certificates as well.

Omission is the reverse of legal duty of care. They are concepts that our leadership and greater society is yet to be fully immersed in.

When vetting panels and institutions such as EACC, IEBC, KRA and DCI approve people with questionable integrity, they must also be held accountable for failing to act in accordance with the law.

Sacking a fraudster or stopping an individual with dubious credibility from ascending to office does not deal with the acute rot created by omission or failure to prevent a crime.

Legal duty of care comes with responsibilities and failure to act, by all cadre of people, is also punishable.

There are millions of acts of omission that have led us to now stand on the precipice, ready to topple over as a society.

To preserve the rule of law and win against corruption and bad leadership, we must curb omission by individuals and vetting institutions.

Ms Guyo is a legal researcher. [email protected] @kdiguyo