Parliament this week vets Noordin Haji, the President’s nominee for Director-General of the National Intelligence Service, in special circumstances.
For starters, 90 per cent of his CV will be missing: As a member of the clandestine security services, his professional achievements are national secrets and unavailable for use to advance career.
Unfortunately also, his record as Director of Public Prosecution might not receive comprehensive attention with the trending topic being the withdrawal of some high-profile corruption cases. The desire of the street to make a big guy sweat is, in Kenya, a highly valued outcome.
However, it is important, for fairness and a thorough evaluation of record, as far as that is possible—as opposed to political anxiety and personal animus— to guide appointments to sensitive offices.
Fact: Kenya’s prosecution service has undergone dramatic changes since March 2018, when Mr Haji was appointed. Today, ODPP is a well-organised, reasonably effective, professional service, a far cry from when important justice decisions came down to a quiet word and greased palm at the poolside bars of city hotels. The profile of ODPP, within the nexus of the justice system involving law enforcement and the Judiciary, is higher; indeed, Kenya chairs the regional prosecutor’s grouping.
Local officials have coordinated effectively with similar organisations in the UK, Italy and elsewhere, which is important in the fight against corruption. ODPP is a new, restructured place, complete with an internal compliance department to police integrity. The Prosecution Training Institute, set up in Loresho, provides continuing education to prosecutors and better terms of service attract the rare skills required to combat emergent crime.
Many of the important decisions—including whether to charge, defer prosecution and plea-bargain—are guided by written policy, which strengthens objectivity, consistency and integrity.
Over the past two years, ODPP has been under public pressure over alleged delay and refusal to prefer charges against suspects, and this became a major point of controversy between investigators and prosecutors. There was a strong anti-corruption push in Jubilee’s last term and it is increasingly clear that the boundary between fighting graft and political witch-hunt was not always blindingly clear. This will remain an area of legitimate public debate involving other institutions as well.
On independence of constitutional offices, the story of former Chief Justice Willy Mutunga is a clear demonstration of what it takes. He once said that there was a red phone on his desk, a hotline direct to the President. In his entire term of office, that phone never rung. So, there is the officer’s willingness to push back and refuse to take instructions and the appointing authority’s restraint and respect for constitutional boundaries. The system works best when the latter never tests the former.
Were Mr Haji judged by service to country, hard work, institution building, respect for the law and ethics of office, not being smeared with Kenya’s rotten political culture, he’d pass with flying colours.
