Don’t hang Judiciary, the devil is in the laws

Ironically, on the day the national conference on fighting corruption ended at the Bomas of Kenya last week, it was reported that Weston Hotel would survive demolition.

This, notwithstanding that it occupies public land. According to a report by the highly discredited National Lands Commission (NLC), the Weston Hotel owner will be required  to pay Sh350 million land cost for erecting the hotel on a 1.7 acres piece of land belonging to the Kenya Civil Aviation Authority. Pending review of the current market rates, the amount could go up, but that is baloney.

Despite entreaties and producing court injunctions, owners of the SouthEnd Mall and Airgate Centre, both in Nairobi, could not get respite from a government seemingly committed to reclaiming public and riparian land.The public applauded, believing impunity had finally found its match. Little did the public know it was all fleeting drama.

Thus, when the Executive adopts that puritanical attitude; blaming the Judiciary for failing to help the fight against the scourge of corruption, one can only shrug helplessly. Corruption is there to stay because the State and its agencies lack the spine and moral aptitude to stay the course in eliminating it.

Impunity still reigns supreme in Kenya, and if anybody seeks to find the land of the "sacred cows", look no further than our motherland. The common denominator in the Airgate, SouthEnd Mall and Weston Hotel sagas is that both were (are) on public land.

Both owners claim to be in possession of legit documents and approvals from City Hall for the erection of the buildings. Given this, and after all the tough talk by the executive regarding the demolition of buildings on irregularly acquired public land, why the double standards?

Land grabbing

The signal NLC has sent, and which anybody owning land irregularly acquired can hang on to is that, as long as one has money to pay for the appropriated land, there is nothing to worry about. It even legitimizes land grabbing if the grabber has sufficient financial muscle, not to mention their exalted standing in society.

In light of NLC’s ruling on Weston, the owners of SouthEnd mall and Airgate Centre  have the right to sue a government clearly in contempt of court. They can petition to have the government forced to apply uniformity of action.

I would have advocated for compensation, but that would hurt the taxpayers and benefit the buccaneers. Indeed, defenders of public rights should demand the demolition of Weston Hotel  and any other building on public land. The law must apply equally across the board unless, of course, we are living in a contemporary George Orwell’s Animal Farm.

The government is guilty of sabotaging the Judiciary. Miguna Miguna cannot come back home from Canada because the Executive can afford to thumb its nose at the Judiciary.

Media houses

Three media house incurred huge losses, and the public was denied the right to information after the government, despite court orders, shut down television stations belonging to the media houses.

This action was taken after the media houses televised live the mock swearing-in of the Raila Odinga as the People's President in January 2018. The mere fact of shutting down the stations infringed on the right to media freedom and free expression, which the Executive swore an oath to protect.

Of course, the Judiciary has its fair share of corrupt officials, but its largest failing, perhaps, is fidelity to a Constitution hailed as the most progressive worldwide. That is what the Chief Justice and his officers swore to uphold.

If the law, for instance, demands that a suspect be given bail under specific conditions, and the suspect meets them, what basis has the Judiciary to deny such rights? Do we expect the Judiciary to draw up a parallel Constitution and penal code that massage the egos of the Executive and other arms of government?

It is this very progressive Constitution and catchy phrases like ‘consultation’, ‘public participation’, ‘gender parity’, ‘constitutional rights’, ‘inclucivity’ and ‘national outlook’ that are holding this country to ransom, not judicial lapses. The Constitution grants an excess of rights and liberties that we are not primed to handle.

The Judiciary has become a casualty of these excessive rights. It is impossible to act tough when the ultimate law grants myriad liberties and loopholes that can be exploited to thwart the same law.

The president cannot even fire outright thieves and incompetents occupying ‘constitutional offices’, because the law protects them. The concept of liberties needs to be re-examined, for it has given us the noose with which to hang ourselves.

The effects of that noose permanently hanging around our collective necks are causing growing anger, and the Judiciary, the custodian of our laws, unfairly takes the heat.

 

Mr Chagema is a correspondent at The [email protected]