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The drama in Kenyan courtrooms in the past few months should tell us that it will be impossible to convict and jail any of the tens of Kenyans in the docks charged with stealing public money.
The lawyers are always strident: Innocent until proven guilty!
They definitely also know that defamation is a costly affair in the Kenyan court system.
So, no sober public prosecutor would arraign suspects in court unless they have some file outlining the indiscretions of the charged individual whilst serving in public office.
The difficulty with convicting the men and women (it used to be men only for a long time) accused of misappropriating or wasting public money arises from the very same lawyers appearing to defend the culprits.
It is the lawyers who would most likely have arranged for the smooth transfer of the stolen money — with the help of bankers — into offshore accounts, trusts, family accounts, property or even keeping the money on behalf of the accused.
They simply know more about how the money was looted, where it is deposited, what forms it may have changed into and how inaccessible it is than the prosecutors will ever know.
This means they are better resourced and prepared to defend their clients compared to the State prosecutors.
Reading The Panama Papers: Breaking the Story of How the Rich & Powerful Hide Their Money (2017) leaves no doubt that arresting suspected embezzlers of public wealth is an insignificant step in the effort to deal with corruption. The lawyers for thieving public officers build several walls between their clients and the prosecuting offices/officers. They make it quite difficult to not only legally trace and identify but also recover the stolen money.
Why, according to the authors of The Panama Papers offshore accounts, companies and dealings means that one individual can create several entities — which cannot be directly traced back to him or her — that ‘own’ or hold property on behalf of the faceless individual. In between them is a lawyer or a law firm.
Panama, after which the book is named, is one of the most preferred offshore destinations for stolen money, money from illicit businesses and money laundering.
But there are so many such countries in the world today that would be willing to look the other way as illicit wealth is banked and hidden in their financial institutions.
But one key argument about what has been called the ‘shadow economy’, one in which money flows freely within and between countries, 24 hours, 7 days a week, is the centrality of lawyers to the whole process of theft and baking of public resources.
Without doubt the lawyers will offer a caveat and argue that they are simply working to earn a living by looking after the interests of their clients, and that their work ethics demand that they keep certain aspects of that relationship confidential.
That explanation may be logical but it is unsatisfactory.
Are we talking about morality here? Not necessarily. Is it about consciousness? Perhaps not. Then what is it about?
Put another way, what does it mean to the larger society when billions of dollars are stolen and stashed abroad, money that is public and would have immensely improved the lives of almost everyone in the society? It would have built hospitals, bought medicine, paid for new roads and equipped schools.
What legal argument will satisfy the hunger for jobs by the millions of Kenyan youth whose Youth Fund billions simply disappeared? Is there a legal explanation that would placate a terminally ill patient who can’t receive pain-relieving medication because someone siphoned into his personal account money meant to busy medicine?
There can’t be a lawful explanation to the public for how the disappearance of billions of shillings from a public company increased the taxes they paid for one commodity or another.
Can it really be true that all the individuals accused of corruption in the recent past were unfairly charged and were actually clean?
How is it that in other parts of the world individuals found to have stolen public money are often prosecuted and jailed or enter into a plea bargain with the prosecutor’s office, receiving lesser sentences after agreeing to return some of the stolen wealth? Is the case of Kenya so special that nearly in all cases of corruption involving billions of shillings, no single individual has ever been jailed and forced to forfeit the ill-gotten property to the public?
If Goldenberg and Anglo Leasing the most recent standard measures of theft of public money, they clearly set a very high bar for successful prosecution of culprits.
No individual accused to have received a substantial share of the loot in these mega-scandals was ever successfully indicted.
What does this history tell us about the current theatre playing out in the courtrooms?
That the smiling suspects know something we don’t know — they will weather the storm through legalese and gain their freedom.
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