Acquittals: Do prominent persons get away without punishment?

Embakasi East Member of Parliament Babu Owino and his Kimilili counterpart Didmus Barasa. [File, Standard]

The CCTV footage at the heart of the criminal court case in which Embakasi East Member of Parliament (MP) Babu Owino was caught on camera allegedly shooting Felix Orinda aka DJ Evolve on January 17, 2020, at the B-Club nightspot in Nairobi’s upmarket Kilimani neighbourhood is still on YouTube.

Time stamped and dated, the shocking video shows the MP whipping out a gun with his right hand and firing one round in the direction of the man standing in front of him while still holding on to the hose of a shisha pipe with his left hand.

Babu allegedly shoots DJ Evolve in the neck. The patrons around them visibly recoil at the sound of gunfire.  

The video then jumps to the club’s exit where the MP and another individual whose face is obscured from view are seen, with some apparent difficulty, carrying DJ Evolve’s limp body by the hands and legs.

The MP was subsequently arrested and charged with attempted murder of DJ Evolve.

In December 2020, Milimani Senior Principal Magistrate Bernard Ochoi allowed the charges to be dropped to “encourage reconciliation as envisaged in the Constitution.”

Media outlets reported that Babu and DJ Evolve had inked a multi-page deal in which the MP would take care of Orinda’s medical bills and upkeep. 

This week, the MP was sprung from the last of his legal troubles in relation to the shooting after he was acquitted of a charge of misuse of a firearm.

As the magistrate noted while announcing the acquittal, the case was clearly frustrated by lack of cooperation by the victim and other key witnesses who were present at the club on the night in question. 

“Surprisingly, the said Felix Orinda who was expected to be a key witness for the State was not a prosecution witness. In-fact the Investigating Officer on cross-examination stated that he did not record a statement from Felix Orinda the victim of the alleged shooting and one wonders whether it was deliberate or a case of negligence he did not state that he approached Felix for recording a statement but refused,” Ochoi observed. 

Babu’s acquittal came hot on the heels of the High Court in Bungoma County dropping murder charges against Kimilili MP Didmus Barasa who had been accused of shooting Brian Olunga, an aide to his opponent Brian Khaemba on election day 2022.

Olunga was shot in the forehead and died on the spot. The Kimilili MP had pleaded not guilty. Lady Justice Rose Ougo said the prosecution had produced insufficient evidence. As a pure matter of law, that is that. The criminal court cases are now behind the MPs. They are free men.

Clearly feeling unencumbered, Babu has already announced his intention to run for the Governorship of Nairobi City County in 2027.

Theatrical charades

However, as the dust settles on these cases, it is worth asking two fundamental questions: What is their impact on perceptions of the rule of law in Kenya, and if the two MPs aren’t responsible for what happened in Kilimani and Kimilili, then who is?

The truth is that the erosion of the rule of law is a subtle and invisible menace in Kenya.

After all, we are a country that has witnessed theatrical charades where theft happens without thieves, grand corruption occurs without identifiable culprits, and land grabs manifest without anyone to point a finger at.

Now, in a macabre twist, we are confronted with shootings that seemingly lack shooters and murders that defy the presence of murderers. It’s all of a piece. One wonders, what’s next in this dystopian narrative? 

All of this makes a lot more sense once you unpack the psychology of what is going on.

To begin with, it is worth grasping that communities and countries in general always define “crime” to accommodate their means of dealing with it. For example, the unsettling history of forcing women to marry their rapists in certain parts of the world serves as a stark reminder of how societies can normalise heinous acts through the guise of legality.

While this practice has largely been abolished, the underlying mentality lingers in instances where objective evidence is undermined or outrightly dismissed in certain court cases. This is what is known as “defining deviancy down”. It is a concept that originated from an essay written by sociologist Daniel Patrick Moynihan in 1993.

The essay discusses the phenomenon in which societies gradually lower their standards for what is considered acceptable, deviant, or criminal behavior.

This lowering of standards can occur over time due to various social, cultural, and political factors.  

Locally, as evidenced by the Kenyan cases at the International Criminal Court (ICC) and other criminal matters, I would wager that political considerations play a big part in eroding the rule of law. Impunity makes for strange bedfellows.

Each side of the political divide has a member or two who got away with something criminally explosive that they shouldn’t have.

This knowledge is then weaponised every time there is an advantage to be gained.

It is a trend that feeds off our society’s growing willingness to turn a blind eye to reality and accept narratives that suit our chosen sides.  

Amidst these escalating assaults on the rule of law, the imperative to reclaim our reality is paramount.

The fabric of a just society is woven from the threads of a robust legal framework, ensuring equity, accountability, and order.

In this vein, two questions echo: Who shot DJ Evolve? And who killed Brian Olunga?

These questions are not just about unraveling these mysteries; it is about reclaiming the reality we have willingly forsaken. This will go somewhat towards reconciling ourselves with the objective reality.

Reclaiming our reality demands a vigilant commitment to defending the rule of law against encroachments that seek to undermine it.

This involves upholding the supremacy of law over arbitrary power, safeguarding institutions from manipulation, and preserving the checks and balances that prevent abuse of authority.

At the heart of this endeavour is a call for unwavering civic engagement.

Former US President Barack Obama said it best: “It is the civil society leaders who, in many ways, are going to have the more lasting impact. Because as the saying goes, the most important title is not ‘president’ or ‘prime minister’; the most important title is ‘citizen.” 

Kenyans must recognise their role as custodians of the societal contract, demanding transparency, fairness, and justice from their leaders.

In this pursuit, fostering a shared understanding of reality is paramount. Objective truths informed by evidence and expertise must anchor our narratives. Resisting the allure of misinformation or the distortion of facts is essential to restoring a common foundation on which meaningful discussions and decisions can occur.  

Reclaiming our reality requires unity, courage, and a commitment to the values that define us. It is a call to action, urging us to fortify the rule of law, re-establish trust in our institutions, and protect the very essence of our democratic principles.

Only through collective determination can we navigate these turbulent waters and secure a future where justice, accountability, and the rule of law prevail in Kenya.