Bid to prosecute every case will leave egg on the face of prosecutors

Last week was Judiciary bashing week. While the complaints about the Judiciary have generally tended to involve Jubilee politicians, this time, Raila Odinga also joined the fray. At the Multisectoral Forum of corruption he echoed complaints by attendants that the Judiciary was sabotaging the anti-corruption war. The consensus appeared to be that the Judiciary was taking an unduly accommodating approach to the corrupt to the chagrin of, among others, the indefatigable DPP and DCI.

If judges and magistrates were not issuing pre-arrest injunctions, they were giving friendly bail terms thus were making a mockery of the war on graft. The Judiciary was also said to be delaying cases and ultimately acquitting accused persons. As a legal practitioner who has spent the last thirty years with largely honest, well-intentioned but long suffering judicial officers, my instinctive reaction is to dismiss the complaints lodged against the Judiciary. But I have to accept that not all complaints are totally without foundation.

The courts have on occasion issued such strange orders in favour of persons under investigation or about to be charged as to make one wonder what else is at play. How can courts stop the police from carrying out investigations against any person? How can the DPP, an independent organ, mandated to file charges against suspects, be stopped from carrying out his constitutional functions? Why can’t the court wait for persons to be charged and then determine efficacy at that stage? Fortunately, these regrettable orders are outliers that relate to very few cases favouring specific individuals. On the whole, other accusations against the Judiciary are misplaced. The entry point is to remember the age-old principle of presumption of innocence. I know we would like to throw all corruption suspects into jail without trial but that is a slippery slope.

The presumption of innocence is a recognition that as against an individual, the power of the accusing state is overwhelming and there must be sufficient safeguards to ensure state power is not abused against relatively weaker individuals. The Courts must remain neutral arbiters who insist that an all-powerful state proves its case beyond reasonable doubt; in all circumstances. Anything short of that would ultimately lead to abuse of power.

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On the easy bail terms, Kenyans must recognise that bail is not meant to be the first instalment of punishment. The sole purpose of bail is to ensure that the accused turns up for trial. If the accused can convince the court that he can appear in court, there is almost no need for any financial security. The other allegation against the judiciary is inordinate delays and routine acquittals. I believe the Judiciary could do better on ensuring that trials commence, proceed continuously and end hastily, while taking into account the normal safeguards for fair trial. What I have noted however, is that on several occasions, the prosecution is itself the reason for delay as they seek to investigate further. A wholesale attack on the judiciary is therefore inappropriate.

As for acquittals, Kenyans must recognise is that there is a whole gap between “knowing” one is corrupt and proving that they broke the law. The typical corruption case is based on wrongful application of procurement rules, undue influence for personal gain or just plain bribery. These cases are difficult to prove essentially because the typical civil servant operates within the letter of the law, even if outside its spirit. To get “beyond reasonable doubt” evidence is difficult. Woe unto a prosecution that is also handling multiple cases and overstretching its officers. I am not surprised that many of these cases end up collapsing, and it’s for no fault of the courts. Good counsel would suggest that especially at this time when the public is skeptical about the genuineness of the anti-corruption war, the DPP only proceeds with cases where the evidence is incontrovertible, ensure successful convictions and send the right message to would-be perpetrators. A whole sale attempt to prosecute every case may be good for the media, but it will leave egg in the face of the prosecutors, however well meaning they are.

- The writer is Advocate of the High Court of Kenya

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