Although judges have no immunity from prosecution, authorities would need the clearest reason to consider a prosecution and might find it wise to obtain the signing off by another authority before the decision to prosecute.
While police covered themselves when they sought the concurrence of Director of Public Prosecutions (DPP) Noordin Haji, he acted without consulting another authority. There is a view that the DPP should have sought the understanding, even concurrence, of the body that represents the Judiciary on his decision to prosecute.
According to this view, Haji should have reached out to the Judicial Service Commission (JSC) before authorising the arrest, and such a consultation would have ensured that the perception of an attack on judicial independence was avoided.
In the context of such a consultation, and if the evidence was clear, it would have been possible for the JSC to advise the judge to consider resigning from office, ahead of a possible prosecution, so that the judiciary would not be dragged into the matter, which would then become personal between her and the prosecuting authorities.
In his statement following the arrest, Haji explained that he had reached out to Chief Justice, only on the day that the arrest was made, a demonstration that little time was allowed for consultation and denying the JSC reasonable time to consider its position.
Two decision-making levels are evident in the arrest of Justice Mwilu. The first level involved the decision by the police to investigate the judge, and the second was the authorisation of her prosecution.
While the DPP can say that he was triggered by a request from the police when he authorised the prosecution, what triggered a decision by the police to investigate the second highest judge, especially regarding transactions dating as far back as six years? Because decision-making at the investigative level is inherently opaque, and because known clear cases remain unprosecuted, it is difficult to demonstrate that the only reason why an investigation against the Deputy Chief Justice was undertaken was in the pursuit of law enforcement, bereft of hidden considerations.
The context of the arraignment of Justice Mwilu is the so-called war on corruption which the DPP and the police are spearheading. However, it is clear that the Judiciary and the government have had a poor relationship, traceable to the annulment, last year, of the results of the first presidential election.
There was a promise by the Jubilee party that it would “revisit” the Judiciary, a vile threat which no independent authority found the courage to deal with.
Since then, the Judiciary has faced a massive budget cut and there has been official trawling against individual members of the JSC, whose personal financial affairs have been subjected to hostile official prying.
Also, there is a contrived controversy regarding the fate of Justice Mohammed Warsame, elected earlier in the year as to represent the Court of Appeal on the JSC but unable to serve because the National Assembly and the presidency insist he must be vetted first.
On its part, the JSC would like Warsame to be sworn into office together with the three presidential appointees, and the failure to resolve their differences has created paralysis.
The Attorney General, who butts on the side of the government, has refused to take his seat on the JSC, thus compounding this crisis and robbing the situation of the one person whose office could have been the natural intercessor.
The hostile rhetoric against the Judiciary last year, significant amounts of which the DPP could have prosecuted, has since given way to a denial of financial resources, meddlesome political involvement in its internal elections aimed to influencing the composition of the JSC and, when this failed, a political controversy that has paralysed the governing body.
Because of a political ambition to destroy it, the Judiciary was already on its knees even before Justice Mwilu was charged. With supposed good intentions that lack reflection, Haji ultimately lacks the sophistication required of his office. His authorisation of Justice Mwilu’s prosecution is extremely reckless.
In his simplistic interpretation of a complex political situation, Haji cuts the image of the character Javert, a policeman in Victor Hugo’s novel, Les Miserables.
Javert is villainous because of a misguided and self-destructive pursuit of justice. Hugo writes that “[Javert] was a compound of two sentiments, simple and good in themselves, but he made them almost evil by his exaggeration of them: respect for authority and hatred of rebellion.”
In a politically toxic situation where the government has bullied the Judiciary all year, wiretapping the conversations of judges and calling them crooks, while other constitutional bodies watched helplessly, Haji is pursuing a blinkered prosecution policy which ignores this extremely offensive conduct, while uncritically lending the use of his office to what is clearly a weaponisation of the alleged war on corruption.