By Pravin Bowry
It was originally anticipated that the Justice, Truth and Reconciliation Commission would address matters relating to injustice in the post-Independence period but there is hardly any move to address the strange happenings which took place in the corridors of justice.
What injustice, or even tyranny, prevailed in the name of justice; how many Kenyans were wrongly convicted for reasons such as political considerations, corruption and how many criminals who should have seen the doors of Kamiti similarly got away scot free for extraneous reasons?
And when talking of injustice, the Judiciary alone does not need to be the only arm to be probed. Historically, the powerful heads of police, the Commissioners, the CID heads, the Special Branch personnel and the Attorneys-General and the nolle prosequi syndrome of yesteryear need to be examined.
Of lost shambas
The tripartite machinery of investigators, prosecutors and judicial officers sometimes working in concert to pervert justice must be made to account in the same manner as the colonial injustices which are now resurfacing.
In the archives of the Chief Justice and the Attorney–General and at Vigilance House there are tonnes and tonnes of historical material to be examined and resurrected for historical reasons and for posterity and for history to be re-written and records put right.
Having witnessed firs-thand the happenings of the post-Independence years, I yearn, and have always yearned, for answers to some perplexing scenarios of the bygone days.
From the day I was enrolled as an Advocate, I have lived with a blanket thrown over my eyes with thousands of unanswered questions. I was admitted to the famous Roll of Advocates, on July 3, 1971 by the first African Chief Justice in the Country, the late Kitili Mwendwa.
And what next? On July 5, 1971, two days later, the Chief Justice had resigned. Surely, I and other Kenyans desire to know why? As rumours of then had it, was he involved in a nefarious plot against the state or was there another reason?
In the Judiciary over the years, about 30 judges were discretely sidelined, or forced to resign despite the fact that their offices were for the greater part of our history constitutionally protected. More importantly, what injustices had they perpetuated and what was the magnitude of their wrongdoing?
In real terms, how many cases they dealt with need to be reopened. There must be hundreds of Kenyans who have had to serve jail terms, lost shambas, paid heavily otherwise for reasons of perverted justice.
Kenyans would also like to know circumstances of the departure of some very able Attorneys-General, Directors of Public Prosecution and other high ranking prosecutors.
There are some cases where the tax payer should not be paying massive retirement benefits for judges who left in unexplained circumstances and without Kenyans being explained the reason.
For example, what prompted some Court of Appeal judges to make their exit from the high offices. The pertinent question remains: Are there any Kenyans who were on the receiving end of injustice and should their cases be reopened?
Aura of suspicion
There is at least one case where three Court of Appeal judges exchanged openly and publicly, acrimonious allegations and counter allegations of some backroom happenings. Two of these judges were retired – not for the considered reference but for other undisclosed reasons and one is still in the high office in the Judiciary.
The litigants of the case and other Kenyans should be told the actual and real story, and a judgement on wrongdoing be made and aura of suspicion removed once and for all.
Advocates who have practiced for long will tell you amazing stories of injustice in the name of justice. There used to be pro-government judges and magistrates who had their own interpretation of justice. There were Attorneys-General who on important appointment would have undated resignations signed and kept in their closet in case the appointees did not toe the line.
There were also cartels of police investigators, prosecutors and magistrates who were instrumental in contriving to ‘fix’ accused with evidence planted and many political trials resulted in dubious and unfair convictions. There was then the syndrome of not granting bail for months, without the accused being exposed to a full trial.
Kenyans need to speak about the injustices in the judicial system of the past, so that we learn from our blunders. Will there ever be a forum where judgment will be passed on whether justice was a shield or a spear of a Kenyan?
The Supreme Court must be ready to open its doors where past injustices are alleged in the corridors of justice and perpetuated by magistrates and judges and other high judicial officers. The Chief Justice and the AG must open their archives under the Right to Information constitutional provision and reveal all acts of perverted justice.
The writer is a lawyer.
bowryp@hotmail.com