“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” — Justice Louis D. Brandeis, US Supreme Court
When justice bows to politics, prosecution becomes persecution cloaked in the robes of law. In the theatre of justice, where truth should be sovereign and law the lone master, the Office of the Director of Public Prosecutions (ODPP) has become a tragic actor, failing its constitutional script with unnerving frequency. To be sure, this I do not purport to conclude on the guilt or innocence of recently arrested individuals —MP Peter Salasya, and others — a matter rightly left to the courts. Rather, it interrogates the systemic patterns that threaten the credibility of justice from the timings this happens.
These recent arrests, spearheaded by investigative bodies like the Directorate of Criminal Investigations (DCI) and the Ethics and Anti-Corruption Commission (EACC), culminate in prosecutions instituted by the ODPP. But the context and cadence of these events raise disquieting questions. When power prosecutes dissent, it is not justice that is blind, but justice that has been blinded. These actions often follow vocal criticism of the regime, leaving a pungent stench of strategic suppression rather than legal impartiality. One need not be a forensic analyst to smell the rot in the timing. It is a pattern as old as authoritarian impulse: Political defiance is followed, almost mechanically, by legal entrapment. The charges may be dressed in the respectable garb of ‘investigations’ or ‘anti-corruption efforts,’ but the substance is unmistakable — retaliation through law.
This sinister rhythm has become very predictable. The ODPP, which ought to be the last line of legal fidelity, increasingly appears to moonlight as an enforcement arm of executive politics. Like a marionette jerking to invisible strings, arrests often come not when evidence crystallises, but when political voices grow inconveniently loud. The Constitution is a defiant break from a dark past, a negotiated hope for an era in which the law would be shield and not sword. Article 157 vests in the Director of Public Prosecutions (DPP) immense power — to institute, take over, and discontinue criminal proceedings. But this power was not intended as a cudgel for settling political debts. It was hedged by Article 157(10): “The Director of Public Prosecutions shall not require the consent of any person or authority to commence criminal proceedings and shall not be under the direction or control of any person or authority.”
Yet here lies the irony that burns: in the name of independence, the ODPP appears to have delivered itself to the very political wolves it was meant to evade. Prosecutorial discretion has become prosecutorial discretionalism, a perversion of justice guided not by law, but by political calculus. Investigative agencies, whose task is to probe with neutrality, have instead become complicit cartographers of political witch-hunts. The constitutional architecture jealously protects institutional independence, not as a bureaucratic ornament but as a guardrail against tyranny. Article 249(2)(b) compels all constitutional commissions and independent offices to operate without control or direction. But when accused are yanked from public offices and dragged into police cells for issuing criticism, it is not autonomy, it is apostasy. What greater heresy exists than to sacrifice liberty image on the altar of partisanship?
Moreover, this dance of politically-timed arrests creates a dangerous paradox. It becomes increasingly difficult to distinguish genuine fight against corruption from political theatre. In the end, it is the Constitution that bleeds, but so too does the credibility of justice itself. Genuine prosecutions which are necessary, urgent, and proper are easily dismissed by suspects as mere vendettas.
And who can blame them? The credibility of the law dies each time it is yoked to politics. It is no accident, then, that the public now views arrests of opposition leaders not as legal milestones but as political milestones. Thus, political persecution disguised as prosecution grants corrupt politicians an unexpected yet potent, moral defence; persecution fatigue. Even when evidence is weighty, the perception of vendetta clouds it. Justice is not merely to be done but to be seen to be done. And when perception itself is wounded, truth limps far behind.
We are witnessing, in slow motion, a coup against the Constitution, not by guns, but by subpoenas. Not by force, but by false fidelity to the law. The ODPP, instead of being the custodian of impartiality, has increasingly authored a grim satire of justice where critics are accused and cronies excused. One might invoke the words of South African constitutional scholar Prof Pierre de Vos: “The legitimacy of the prosecutorial authority lies not in its power to prosecute but in its power to restrain itself from prosecuting where the law has no quarrel.”
By that metric, ODPP has failed spectacularly. It does not prosecute where the law demands, nor does it refrain where justice would advise. The time for rhetorical subtlety has passed. The current architecture of prosecution in Kenya is increasingly crumbling under the weight of its own hypocrisy. It is not enough to whisper reform. We must demand a return to the Constitution, to the soul of justice itself. Until then, every politically-timed arrest shall remain a scar on the face of our Republic. And the ODPP? Until it repents of its dalliance with politics, it shall remain not the Office of the Director of Public Prosecutions, but the Office of the Director of Political Persecution.
By Ndong Evance