In many respects, watching the processing of Deputy Chief Justice Mwilu by the Directorate of Criminal investigation and her eventual arraignment before a magistrate on corruption charges was a sad day for Kenya.
Without doubt, many, especially in the Jubilee fraternity, gleefully celebrated her misfortune. As for NASA, this was a moment to express hypocritical indignation. It was a sad day because until this moment, we have appeared to be united in the determination to slay the corruption dragon; absent of our normal ethnic and political goggles.
It is clear however that our commitment to slaying this dragon is only skin deep. The retreat to our instinctive political camps is alive and well. For the avoidance of doubt, I must at the outset say I have several concerns about DCJ Mwilu’s prosecution.
My concerns are not that a judge cannot be prosecuted without going through the Judicial Service Commission (JSC); that is a fallacy.
If the Chief Justice shot a Kenyan on Uhuru Highway, he would not be taken to the JSC. He would be instantly charged with murder, and this has happened before.
Only the President has immunity for any acts while he is in office, and even here there are exceptions.
My concerns are at four levels. One is the politicisation of the matter by NASA which has taken the overt position that this is a politically instigated prosecution. What NASA does not seem to appreciate is that the very accusation they make against Jubilee of politicising the war on corruption, is the same one they immediately apply, by politicising Judge Mwilu’s prosecution.
Many public figures who expect prosecution will undoubtedly celebrate this theme. It will be very useful when their day comes.
My second concern arises out of the charges preferred against the DCJ. In my opinion, the profile of the office of a DCJ demands that any charges preferred against such a party must be of such magnitude as not to invite conjecture as to the motives for prosecution.
This is even more critical when one considers the post-election nullification comments on the Judiciary by many in the Executive.
I must say I am not impressed by the magnitude of the charges. Granted, any breach of the law can invite legal censure, but even the DPP has spoken of the need for strategic prosecution.
Prosecuting the DCJ on routine charges in our circumstances does not appear to fit in a strong, sustainable anti-corruption strategy.
Thirdly, the prosecution of the DCJ is a bad taint on our young democracy. If, as many in NASA believe, the prosecution is a “revisit” it would greatly imperil our popular war against graft and confirm that it is largely a populist and politically partisan fight.
Public support would then inevitably wane. If on the other hand her prosecution is meritorious and informed purely by the need to punish all accused whatever their station, it would be laudable for our anti-corruption institutions but would leave a debilitating blemish on our Judiciary.
If our second highest judicial officer can engage in the conduct complained of, what hope is there for Kenya? Whichever side you sit in our vibrant political divide, there is really little to celebrate; it is simply a huge indictment on either Kenya’s prosecutorial arm or the Judiciary.
Finally, I consider it unfortunate for the DCJ to seek the stoppage of her prosecution through the courts. If indeed the charges against her are frivolous, the best course of action would be to take a leave of absence and insist on a speedy trial.
This would vindicate her and leave her even stronger. It now appears that she is using the benefit of her office to stop the prosecution. In the immediate term, it may be a win but in the long term it diminishes her.
More importantly it says to a skeptical Kenyan public that there are sacred cows who will use existing institutions to stymie the anti-corruption war.
These are hopeful times for Kenya on the anti-corruption war. One hopes DCJ Mwilu’s prosecution does not become an unnecessary distraction.
-The writer is an advocate of the High Court of Kenya