Whatever direction Justice Philomena Mwilu’s trial takes, it is the sight of a Supreme Court judge seated in the dock to answer criminal charges which will remain in many people’s minds before the judgement.
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Yesterday’s events in the Nairobi Chief M agistrate’s court will be a watershed in the history of Kenya’s judiciary – and could be a turning point in the anti-corruption campaign being waged by the DPP Noordin Haji.
Whichever direction the trial takes, it will generate discussions on the corridors of justice and beyond. This will happen because of Judge Philomena Mwilu’s seniority in the bench and the ramifications of her arrest for the Judiciary and the rule of law.
It is understood that before Mwilu’s arrest, the Judicial Service Commission (JSC) had two main concerns.
Some members of the commission saw the intended charges to be a about a private commercial transaction that had no bearing on official duties. Why, they asked, was it being raised now and being projected as forming part of the fight against corruption?
Secondly, given the fact that the transaction in question dated back more than five years, what has triggered the decision to go back to it? Hopefully, the answers to these will emerge in the trial.
One of the charges is a tax issue where Mwilu is suspected to have failed to pay stamp duty to the Kenya Revenue Authority in several transactions.
Accountants will be wondering why a tax matter is being handled by the Office of the Deputy Public Prosecutor (ODPP) and the Directorate of Criminal Investigations (DCI) and not by the Kenya Revenue Authority, an argument likely to be raised by the defence. The usual procedure for managing tax matters is different from the one that is currently being followed.
Even though President Uhuru Kenyatta’s administration’s drive against corruption enjoys support across the country, within the judiciary, the Mwilu trial could poison afresh relations between the courts and the government.
While the prosecution of such a high-profile personality dramatically shows no-one is sacred in the crackdown, it could breed a quiet resistance in the final and crucial stage of law-enforcement, which is in the courts of law. That would turn the whole anti-corruption exercise into a fool’s errand.
The media had been expecting a statement from the Chief Justice’s office in the morning, but none was released at all.
Recently, members of the JSC have been taken through a detailed financial audit which included, in some cases, speaking to members of their families. That is a good thing – no section of Kenyan society should be spared in the ongoing clean-up.
The public will be studying the charges unveiled this morning against judge Mwilu and analyzing the details. The state must prepare for the possibility of a perception growing, especially among Judge Mwilu’s sympathisers, that her arrest is the beginning of the threatened “revisit” of the Judiciary’s judgment that annulled the presidential election in 2017. It’s up to the DPP to ensure the prosecution of this case dispels any such suspicion.
Whatever justification is given for the arrest, the aura of inviolability which envelopes judicial office, and which is so important for the independence of the judiciary, has been broken.
It needs to be made clear that in Kenya’s system, judges do not enjoy immunity from prosecution for criminal offences. This means that, in principle, a judge is liable for arrest in the same way as an ordinary citizen under the same circumstances.
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However, in view of the effect that such an arrest can have on perceptions about judicial independence, the police would need to have the clearest reason for making the arrest and would probably also seek some higher signing off before the arrest.