On graft war, allow court its space to work freely

Lancing the boil of corruption has become a national preoccupation. It appears to have upstaged the four pillars of President Uhuru Kenyatta’s legacy. Affordable housing, affordable healthcare, manufacturing and food security have been put on the back-burner as the entire nation is riveted by arrests or threats of arrest of people accused of graft. Because these arrests happen mainly on Fridays, the day has developed a notoriety, with the moniker “kamata kamata Friday,” (apprehend Friday) doing the rounds, scaring the wits out of public officers deemed to be in the line of fire.

Perhaps to assuage the bloodlust of those tired of corruption, the purge has taken on a moral force. First, the Ethics and Anti-Corruption Commission (EACC), then the Director of Public Prosecution (DPP) and most recently, the President, have pronounced themselves clearly on what they perceive to be lenient bail terms accorded to those accused of corruption. Whereas their intentions in calling for stringent conditions may be noble, they run the risk of appearing to direct the Judiciary on how to conduct itself.

Kenya subscribes to the constitutional notion of separation of powers. The three arms of Government; the Executive, Legislature and Judiciary, operate with some degree of autonomy. It is only in times of crisis or war where the three arms collapse into the Executive. Questions then arise; are we in a crisis? Has corruption in Kenya reached pandemic proportions? If the answer is yes, then the President’s complaint about the Judiciary’s role in the graft fight is justified. But if not, he risks offending the sensibilities of other arms of Government.

Until proved

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When the President stands up in a public forum to make such a loud lament about the Judiciary, it speaks volumes about the apparent lack of communication between the arms of Government.

Ideally, he ought to have called the Chief Justice for a private cup of tea to iron out issues. Where such breaches in communication exist, services to citizens suffer. Further, it entrenches a culture of hostility between the Executive and the Judiciary that lives on even beyond current office holders. It is important that the purpose of bail for accused persons be understood by Kenyans. First, it is a right and not a favour that is doled out by those in authority. Article 49 (1)(h) of the Constitution says “an arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”

Second, the function of bail is not to punish accused persons but to ensure they attend court. This is predicated on the doctrine of presumption of innocence until proved guilty. The President and his deputy William Ruto are past beneficiaries of lenient bail terms.  Facing criminal sanction at the International Criminal Court, they conducted their defence away from custody at The Hague. They were eventually acquitted.

Glorious isolation

Unfortunately, the court of public opinion entertains the fatuous notion that to be charged with crime is an admission of guilt, deserving of immediate incarceration in a prison or remand centre. Little wonder then that people facing charges are greeted with opprobrium with newspaper headlines declaring as statements of fact, that they are architects of thefts or scams.

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Worse still is the fact that the court of public opinion can be an effective tool. One can be lynched in this court to the extent that a court of law has no alternative but to find them guilty.

This happens because judicial officers do not live in glorious isolation. They are not immune to popular sentiment and may not want to be subjected to a barrage of criticism over the release of those cleared by due process but are nevertheless, “guilty” in the eyes of the public.

Rather than focus on matters of bail, some quarters within legal circles opine that the DPP should be more concerned about the pace at which due process is exacted.

Charging anyone in a court of law for crime is mortifying, not only to the accused, but also to family members and associates. That itself is punishment. There are cases that have stayed unresolved within the courts for years on end, giving credence to the dictum ‘justice delayed is justice denied.’

Judging from the DPP’s public utterances, he has incontrovertible proof of malfeasance on the part of arrested public officers. The litmus test will be whether he secures convictions of those charged or whether they turn out to be scurrilous attacks on the integrity of accused persons.

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Mr Khafafa is Vice Chairman, Kenya-Turkey Business Council

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President Uhuru KenyattaEACCDPPJudiciaryGraft