During the recent launch of the State of the Judiciary Report, President Uhuru Kenyatta and Chief Justice David Maraga revisited last year’s Judiciary budget cuts, the low conviction rate in corruption cases and frequent court injunctions that have halted government projects.
Is the Judiciary standing in the way of the fight against corruption? What role do other bodies such as the DCI, EACC, and ODPP play in the criminal justice chain? Who is to blame?
Because Kenya is a commonwealth country that inherited the adversarial model of justice, including criminal justice, the role of the Judiciary is more limited to ensure an impartial trial; making rulings on points of law; and, deciding whether one has a case to answer, and later determining guilt or innocence and sentencing.
In other words, the judge is confined to only what is presented before him.
In legal systems that have a Roman law legal tradition such as continental Europe and their former colonies, the role of the court is inquisitorial where the judge or magistrate goes out of his way to inquire about facts.
As such, in our system, criminal cases are only as strong as the investigations gathered and the integrity of the work of the DCI and the EACC.
The DPP also plays a vital role in framing the case against the accused and adducing evidence in a manner that will show that the charges are indeed correct.
Whereas the FBI was able to investigate, extradite, charge and convict Baktash and Ibrahim Akasha in a speedy manner - the Kenyan legal system had failed.
In their depositions and defence and testimonies, the Akashas fingered not only judges as widely reported, but also prosecutors and law enforcement agents as accomplices in their quest to defeat justice.
To me, the ‘Chickengate’ scandal illustrates more how our justice system has not risen to the occasion, especially in dealing with economic crimes touching on the influential.
‘Chickengate’ refers to a corruption scandal that was unearthed by the UK Serious Fraud Office (SFO). It involved a UK company ‘Smith and Ouzman’, which was found to have bribed IEBC and Knec senior officials in order to secure printing contracts.
The SFO was able to trace the ‘chicken’, code word used for bribes, to several named and identifiable individuals in Kenya.
In 2015, Nicholas Smith, the head of Smith and Ouzman, was convicted for economic crimes, jailed for three years and his company fined over 93,000 pounds. Despite evidence by SFO, which was handed to Kenya, no one has been convicted.
Under Article 168 of the Constitution, a judge of a superior court may be removed from office on the grounds of breach of code of conduct, incapacity, incompetence, gross misconduct and misbehaviour or bankruptcy.
Removal is to be initiated through a petition by any person to the Judicial Service Commission which, if satisfied on the grounds and threshold, transmits its decision to the president who suspends the judge and forms a tribunal to sit and prepare a report.
If there is evidence of pervasive corruption within the Judiciary, it is in Kenya’s interest that independent and evidence-informed removal proceedings are commenced against the corrupt judges in order to stop the wholesale condemnation of an entire arm of government.
It is not proper to claim corruption, yet no evidence is adduced, nor proceedings commenced against those adversely mentioned.
A civilised and democratic society or economy cannot function and thrive without a good criminal justice system buttressed by an independent and impartial Judiciary.
When the Judiciary is seen to be pressured by the Executive into submission or is seen as pandering to the Executive, we will find ourselves in a situation where the Judiciary is a mere rubber stamp for personal whims and not the law, justice, and rights.
Mr Kiprono is a Constitutional and Human Rights [email protected]
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