Don't blame Judiciary for your own failures

As Peter Koech takes his evening constitutional in the leafy greens of Nairobi’s Lavington surburbs, he reminisces of a time past. He recalls a period in the 1990s when such a stroll wasn’t possible because of the tension in the air.

A time when agitation for increased democratic space had reached febrile proportions and the face-offs between state and citizens often breached law and order resulting in violent confrontation. Peter remains acutely aware of the price paid for the fundamental rights and liberties he enjoys currently, freedoms that were exacted under pain of death of many of his contemporaries.

The Kenya Constitution promulgated in 2010 guarantees the way of life that Kenyans enjoy today. Chapter 4 provides, what is arguably, the most comprehensive Bill of Rights on the continent. Article 19 says “the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the state” and “are subject only to limitations contemplated in the constitution.” The Judiciary, one of the three arms of government, is the defender of these rights and liberties. Alongside the Executive and the Legislature, these arms of government exist purely to offer services to citizens of Kenya.

Which is why accusations that the Judiciary is the weakest link in the fight against corruption, should be a matter of grave concern for all Kenyans. Director of Criminal Investigations (DCI) George Kinoti and Director of Public Prosecutions (DPP) Noordin Haji have accused the Judiciary of giving corruption suspects lenient bail terms and issuing “strange orders”.

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Chief Justice

They allege that these are hurdles in the fight against corruption. President Uhuru Kenyatta and former Prime Minister Raila Odinga have also weighed in and made their displeasure with the Judiciary evident. A flinty Chief Justice (CJ) David Maraga has put up a rather robust defence of the Judiciary. He has, instead, accused the DCI and DPP of presenting weak evidence and bungling most of cases.

It is instructive to note that the President seems surrounded by former intelligence officers from whom he appears to be taking cue. Ethics and Anti-Corruption Commission CEO Twalib Mbarak, Director of Immigration Alexander Muteshi, the DPP and the DCI have all had stints in the intelligence service.

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Which is probably what informs their frustrations with the Judiciary. The orientation of intelligence operatives is to work with rumours, speculations and suspicions. These are then escalated to other agencies for further action. Translating intelligence into an actionable case has therefore been a challenge to the DCI and DPP. What would have passed for weighty evidence in intelligence circles does not seem to pass muster before the Judiciary.

Detain citizens

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In most crimes, especially corruption-related ones, there are degrees of culpability ranging from facilitators to the biggest beneficiaries. The rule of thumb is to prosecute the big fish and use the facilitators as prosecution witnesses. The CJ talked of courts jammed with 30 accused persons and 30 advocates representing them, a logistical nightmare for an ill-funded Judiciary.

He said that these were some of the impediments of the corruption fight but the sub-text of it was the allusion to the relative inexperience of the DCI and DPP in the criminal justice system. And the recent decision by the DPP to discharge some Kenya Power fraud suspects seems to bear him witness.

Those calling for punitive bail terms for suspects of corruption appear to be yearning for a return to the 80s and 90s where the Executive was vested with the powers to arbitrarily detain citizens without trial. Such egregious abuses to civil liberties are no longer countenanced by the constitution.

In fact, even police officers cannot detain suspects for more than 24 hours. The oversight of the courts ensures that even “enemies of the state” are treated with dignity befitting human beings. “Kamata Kamata Fridays” or arrests and holding of suspects from Friday until Monday when they are taken to court, is an effete attempt to reclaim non-existent powers of detention.

It serves no useful purpose in the corruption fight other than to fix perceived enemies of the state. It smacks of malice and has undercurrents of a sub-plot hell-bent on subverting democratic space.

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As Peter Koech continues to reflect on the strides that Kenya has made in disconnecting with the past, he can only hope that the bastion of law and order, the Judiciary, will not be cowered in the face of the onslaught from those who blame it for their own failures. In the words of our national anthem “Justice is our shield and defender.”

Mr Khafafa is Vice Chairman, Kenya-Turkey Business Council

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Noordin HajiGeorge KinotiJudiciaryTwalib MbarakAlexander MuteshiCorruption