By LUKOYE ATWOLI
Sunday Nation 29 January 2012
Sunday Nation 29 January 2012
This week, let us try and resolve the dilemma presented by the following case.
One day, a businessman is called to the office early in the morning, and finds critical parts of the building burnt to the ground. The security guards have all been killed, and several female employees have been sexually assaulted and left for the dead. The businessman is devastated, and calls in the police for investigations.
A while later, the police inform the businessman that while investigations are still on-going, his exemplary employee, an accountant with an impeccable record, has been implicated by several witnesses. Despite his reservations, the man tells the police to ensure that no stone is left unturned in investigating the incident.
At the end of investigations, the police inform him that they have sufficient evidence to recommend prosecution of the accountant and his accomplices for the heinous crimes at the business premises. They clarify to him that this does not mean that the accountant is guilty of any crime, and that this determination can only be made by a competent court of law.
They arrest the accountant and hand him over to the prosecutor, together with all the files containing the results of their investigations. The prosecutor studies the case files and agrees that there is sufficient evidence to charge the accountant with murder, arson, sexual assault, violent robbery and related crimes. He goes ahead and files the case in court.
Seeking injunction
However, before a judge is allocated to hear the case, the accountant’s lawyer goes to another court seeking an injunction against the prosecution. He argues, as we often do in Kenya, that his client’s prosecution will result in his loss of income and prestige in society, and will prevent him from getting the promotion that he has been waiting for at work.
The accountant remains a free man while all this is going on, and continues showing up at the office while the owner organises to renovate the destroyed sections of his building and hire replacement staff. The accountant’s friends approach the employer and implore him not to take any action against the accountant since he is still not guilty until a court of law proclaims otherwise.
Here is the question: If you were the business owner, what would you do?
Would you wait until the case against the accountant’s prosecution is heard and determined before you make a decision? And what would that decision be?
Alternatively, would you wait until he is charged substantively with the crime before you make a decision? Again, what would that decision be?
Finally, would you wait until he is convicted before you make up your mind on what to do with him? In your thinking process, would one of your options include hiding him in your premises should the court rule against him in any of the cases?
In simple terms, at what point would you ask him to leave and never come back?
These, in my view, are the questions Kenyans must answer about the senior government officials charged with crimes against humanity at The Hague. Everybody knows what the law says about ethics and integrity, but the answers to these questions will only be found in our personal and collective moral codes.
Spending time scouring the statutes to find any and all exculpatory provisions is very telling indeed.
Dr Lukoye Atwoli is secretary, Kenya Psychiatric Association and lecturer, Moi University School of Medicine. www.lukoyeatwoli.com
One day, a businessman is called to the office early in the morning, and finds critical parts of the building burnt to the ground. The security guards have all been killed, and several female employees have been sexually assaulted and left for the dead. The businessman is devastated, and calls in the police for investigations.
A while later, the police inform the businessman that while investigations are still on-going, his exemplary employee, an accountant with an impeccable record, has been implicated by several witnesses. Despite his reservations, the man tells the police to ensure that no stone is left unturned in investigating the incident.
At the end of investigations, the police inform him that they have sufficient evidence to recommend prosecution of the accountant and his accomplices for the heinous crimes at the business premises. They clarify to him that this does not mean that the accountant is guilty of any crime, and that this determination can only be made by a competent court of law.
They arrest the accountant and hand him over to the prosecutor, together with all the files containing the results of their investigations. The prosecutor studies the case files and agrees that there is sufficient evidence to charge the accountant with murder, arson, sexual assault, violent robbery and related crimes. He goes ahead and files the case in court.
Seeking injunction
However, before a judge is allocated to hear the case, the accountant’s lawyer goes to another court seeking an injunction against the prosecution. He argues, as we often do in Kenya, that his client’s prosecution will result in his loss of income and prestige in society, and will prevent him from getting the promotion that he has been waiting for at work.
The accountant remains a free man while all this is going on, and continues showing up at the office while the owner organises to renovate the destroyed sections of his building and hire replacement staff. The accountant’s friends approach the employer and implore him not to take any action against the accountant since he is still not guilty until a court of law proclaims otherwise.
Here is the question: If you were the business owner, what would you do?
Would you wait until the case against the accountant’s prosecution is heard and determined before you make a decision? And what would that decision be?
Alternatively, would you wait until he is charged substantively with the crime before you make a decision? Again, what would that decision be?
Finally, would you wait until he is convicted before you make up your mind on what to do with him? In your thinking process, would one of your options include hiding him in your premises should the court rule against him in any of the cases?
In simple terms, at what point would you ask him to leave and never come back?
These, in my view, are the questions Kenyans must answer about the senior government officials charged with crimes against humanity at The Hague. Everybody knows what the law says about ethics and integrity, but the answers to these questions will only be found in our personal and collective moral codes.
Spending time scouring the statutes to find any and all exculpatory provisions is very telling indeed.
Dr Lukoye Atwoli is secretary, Kenya Psychiatric Association and lecturer, Moi University School of Medicine. www.lukoyeatwoli.com
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