#AccountabilityKE: It’s Not My Job Because, Due Process

I watched the State House summit  on the state of corruption, governance, accountability and all those donor-funded buzzwords we are fond of repeating. It even had its own hashtag – #AccountabilityKE.

On the panel was the learned Director of Public Prosecutions, the even more learned Attorney-General, the CEO of the Ethics and Anti-Corruption Commission and the Director of Criminal Investigations. They all spoke well on the need to follow the due process, doing proper investigations before sending the file to court so that we lock up the bad guys forever and ever. Amen.

In an ideal world, this should be a more potent strike force than FC Barcelona’s MSN in the fight against corruption.

What we think we are getting

Well, they do resemble Barca in one aspect: the swift passing of the ball (did I say ball? My bad, I meant buck) under pressure with the slightest one touch. Pass and move. Tiki taka.


The aforesaid panel all said the courts are to blame. After all, cases take forever in court, with mostly nonsense judicial review and constitutional and human rights applications before a case takes off. And in the rare event that a case actually proceeds, it is thrown out for lack of evidence. Taka taka.

This is the point I got all confused like this guy.


On one hand, the fellows in charge of investigations were praising due process and in fact, taking credit, for following due process as they do their jobs. Then they somehow blame due process for the slow actions taken. Here’s something much less confusing…


But it was nothing compared to what the President had to say. He flat-out denied he had anything to do with it. Matter of fact, he said he’s done everything he could do. He cannot appoint or fire anyone, because, the Constitution, fair administrative action and due process. He cannot do anything. His hands are tied by law. The best he can do is avail resources and be visibly angry when others don’t do their jobs. You know, like the pesky courts which just sit on their hands, release suspects on bond, allow nonsense applications and give more nonsense orders and take 15 years to decide a case…with an outcome of not guilty due to lack of evidence.

Saa mnataka nifanye?
Saa mnataka nifanye?

It was a good bawling session…


I found myself humming to this…

A frequent stick used to beat the agencies was Chickengate, where the United Kingdom’s Serious Fraud Office investigated the bribe givers,  hauled them before courts which convicted and sentenced them of their crimes and for good measure, forwarded all relevant materials to the Kenyan authorities. There was, of course, absolutely no corresponding action by the Kenyan authorities. Imagine that.


Due process is what distinguishes a functional legal system from a horde of barbarians at the gate. In as much as we have some very unsavoury characters in our midst, who deserve all the bad things coming their way, they have the right to equal protection under the law. Remember the marshal’s words in this scene from Django Unchained where Dr. Schultz shot the sheriff? The whole town wanted Schultz and Django dead. But for due process.

In a nutshell, when the investigative bodies bungle up as they are prone to do (incidentally Justice Kihara Kariuki of the Court of Appeal was at the summit and quite frankly called their investigations “quite appalling”), you should not just sit back and wait for them to muck it up further. We have a saying: Vigilantibus Et Non Dormientibus Jura Subveniunt. In simpler terms, don’t sleep on your rights. God helps those who help themselves.

The right to a fair trial is guaranteed to every Kenyan in the Constitution under Article 50. The investigative process is an administrative process, further guaranteed under Article 47 and the Fair Administrative Action Act, 2015. So when you see the investigations being carried out in a manner prejudicial to your rights, why should you sit back and let them ride you roughshod?

If anything, the investigative agencies should seal all their loopholes, carry out proper investigations and depoliticize the investigative process. With better investigations, perhaps, we could secure convictions.

But it is all a dream. I have a better chance of succeeding Welbz below as the Pope.


Martin Maitha

Mr. Maitha is an Advocate of the High Court of Kenya. He specialises in legal research and writing, and has a keen interest in corporate, commercial, media and ICT law.



About Martin Maitha 16 Articles
Mr. Maitha is an Advocate of the High Court of Kenya. He specialises in legal research and writing, and has a keen interest in corporate, commercial, media and ICT law.