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New efficiency rules illegal

By | March 24th 2010

By Pravin Bowry

In criminal justice system in Kenya as in other parts of the world, new challenges are inevitable. The noble urge to find solutions must be commended but the legal transformation must be within our laws.

Two recent distinctly different proposals, judicial and investigative, can make a criminal defence lawyer go into overdrive with juicy defences of unconstitutionality, illegality, abuse of process and prosecutorial and judicial impropriety.

The first proposal relates to modes of expediting hearings and disposal of corruption cases. It is suggested that courts sit outside the normal hours. It is anticipated the new rules will be introduced administratively and not through a statute or subsidiary legislation.

Implementing this proposal will not be easy due to huge legal obstacles.

Whilst some overzealous judicial officers can conduct hearings as late as 2.30 am, as happened some time ago in a Nairobi murder trial, the Court of Appeal has held that hearings must be undertaken between 9.00 am to 5.00 pm.

Key questions

Remember the Mwakenya trials of the 1980’s? Bringing the accused for pleas after court hours raised questions of partiality, both of the prosecution and the magistracy, and the debate has continued years after the convictions, which were repeatedly questioned on grounds of court timings.

The doctrine of legal precedent is not easy to circumvent and can be done only by express legislation. The new proposal, therefore, will be contrary to law. Then there is the constitutional question of two parallel systems of jurisprudence and what lawyers call the principle of equality. Would it be fair and just for citizens to be exposed to different timings of court session for different set of offences? Judicial disparity will inevitably raise legal eyebrows!

The second dilemma is about a report that ‘The Business Intelligence Unit’ has been set up to investigate cases of tax evasion and dumping of goods into the local market to be composed of detectives and other experts.

The setting up of the unit appears to be ultra vires the Kenya Revenue Authority Act. A KRA assistant commissioner is reported to have said that the "unit has been given consent by the Attorney General’s office to prosecute cases with the assistance of state counsels and charge those who evade tax under the Anti-Corruption and Economic Crimes Act. It will use the Act to target the white collar crime".

If the above is true, note that there is no legislation to support the legality or birth of the unit, which has reportedly been in existence for the last two months. The deeds and acts of the unit can be questioned.

And will this unit not encroach on the statutory powers of KACC? Non-conformity to tax laws and corruption are two different regimes and can hardly be married in criminal law.

The tripartite investigative confusion between the police, KACC and KRA is apparent and the simmering legal arguments in the mind of gleeful lawyers will make any ensuing prosecution of offenders more legally difficult and time consuming.

And when talking of expediting justice by overtime courts, somebody owes Kenyans an explanation as to how a corruption case having a judge as a complainant and a well known suspect resulted in being withdrawn after six years!

Is the solution not in efficiency of our existing systems rather than new legally uncertain footprints?

The author is a lawyer in Nairobi

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