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Legal formalism is the pagan’s sword against war on corruption

By Makau Mutua | Jan 20th 2019 | 4 min read

In Kenya, the biggest threat to the rule of law – the equal, effective, and fair administration of justice – has often been the Executive. This was especially true during the eras of the de facto and de jure one-party states. The Judiciary was a lapdog of the Executive. Virtually every judge was roadkill for State House. Even after multipartyism in 1991, the culture of judicial subservience to the Executive persisted until 2010 when judges started to reclaim a measure of independence. But another equally insidious threat to the rule of law has been corruption in the Judiciary. A lifestyle audit of judges and magistrates in Kenya would send more than three quarters of them to jail.

Don’t get me wrong. I still think Executive interference still threatens the rule of law. But methinks the Judiciary – not the Executive – is now the most lethal threat to the rule of law. Thick-heavy cabals – a collection of corruption syndicates – comprising judges, magistrates, lawyers, business interests, the police, politicians, public servants, and prosecutors have formed protection rackets to loot Kenya. Virtually everyone in law enforcement and the Judiciary is on the take. The Judiciary doesn’t need the Executive to defeat the rule of law. The job of subverting the rule of law takes place within the so-called temples of justice. It’s, as they say, an inside job. Equally worse, the Law Society of Kenya (LSK) is both hapless and complicit.

Let me illustrate my point. Every Kenyan knows that since independence no “big fish” has ever been convicted and sent to prison over corruption. This is in spite of the cascade of obscene scandals that rock the country year in and year out. At best corruption suspects – who openly reek of ill-gotten loot – are arrested in daylight stunts before TV cameras. They are arraigned. Then the cases die. The thieves go back to their lives of conspicuous consumption. Many of them sit in the inner sanctum of power. Even more nauseating, the equally morally bankrupt Kenyan electorate returns them to power election cycle after election cycle. The Kenyan citizenry elevates those who rape them. It’s the pedagogy of the oppressed. 

Corruption has become a game virtually every Kenyan plays. They say that it’s your fault if you can’t steal, don’t, or won’t create an opportunity to steal. It’s your moral failing if you can’t – or won’t – steal. Shauri yako (it’s your problem). Kufa maskini (die poor). That’s why I don’t think Kenyans are serious when they complain about corruption. Otherwise, if Kenyans were truly fed up, they would pour into streets and demand results – lifestyle audits, arrests, convictions – in Uhuru Kenyatta’s war on corruption. I am starting to think that only Mr Kenyatta and ODM’s Raila Odinga are interested in fighting corruption. Why aren’t Kenyans demanding the heads of public thieves on a silver platter? Why do they keep electing thieves?

I am sickened every time I look up and see some of Kenya’s biggest thieves – usually politicians – railing against corruption in public rallies. They know the Judiciary won’t do a damn thing. They know the police will conduct shoddy investigations on purpose so the cases won’t stand up in court. They know the lawyers will raise some technicality to defeat the prosecution. They know the judge will grant bail even when every school kid can tell you that the suspect will sabotage the investigation. And they know the LSK will shout from the rooftops about unfair prosecution and targeting of their colleagues.  The LSK will rail about legal formalities and procedure and never address substance. 

I am a law professor and have spent my entire professional life teaching and writing about the law when I wasn’t out defending human rights and constitutional protections. Remember this phrase – hypocrisy is the homage that vice pays to virtue. Mobutu Sese Seko’s notorious Zaire ratified every imaginable human rights treaty only to honor it in the breach.

Kenya’s judges and lawyers preach respect and obedience to the Constitution and the due process protections of the law only to cynically use them to subvert the rule of law. It has always been so in Kenya. We thought the 2010 Constitution would reform the corrupt judiciary and the private bar – its Siamese twin – but it’s been for naught. We are doomed. 

I’ve said before that legal formalism is the pagan’s sword against justice. That’s what lawyers for the mafia in America used until prosecutors got smarter. No-knock warrants and wiretaps – executed within constitutional limits – brought down many mafia dons. Kenyan judges – led by CJ David Maraga – must decide if they want to rid the country of the scourge of corruption, or not. Will they allow blatant and vexatious pleas of legal procedure to become the last refuge of the scoundrel to defeat the war on graft?

- The writer is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC.  @makaumutua

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