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Weak link in graft war? That can't be Judiciary

By Connie Baraza | March 24th 2020

The Judiciary continues to receive the flak and fury and has been blamed for inertia in the war against graft while being termed the weakest link in the justice chain. But wait, what exactly is the role of the Judiciary in the war against corruption?

Courts adjudicate over matters brought before them and give verdicts based on the evidence presented to them. Is it then possible, for the courts to convict, fine or lock up people presented before them on mere allegations? Your answer is as good as mine. Laid out court and case management procedures must be followed while at the same time, the rights of the accused must be respected. Courts must hear all witnesses in a case as the law provides that accused persons may call as many of them as they deem useful in their defence.

There are scenarios where a case is presented in court with 20 suspects from one institution arraigned and charged jointly. If each of them procures an advocate, cross-examination of one witness can take a whole month. If those who arrest and charge suspects in courts are interested in expeditious handling of cases, they should simply charge a few top suspects and convert the rest into state witnesses.

Other questions to consider would be: Are courts always available? What of the readiness of prosecution? Do they provide relevant documents to the defence in good time or at all? Do they call witnesses? What of the number of advocates in a matter of public interest or that which involves a public figure and each advocate asks for a chance to address the court? These are some of the issues that ail the ‘big’ cases with lots of time spent on a matter.

In addition, at times the counts presented on a charge sheet for an accused are too many. Take criminal appeal Ochieng Vs Republic (1985) KLR 252, for example, where the accused was charged with 44 counts and the Court of Appeal ruled that it was undesirable to charge him with so many counts in one charge sheet as that may occasion prejudice. The court held that, one should be charged with not more than 12 counts in one charge sheet.

The Chief Justice David Maraga (pictured) in his blueprint Sustaining Judiciary Transformation committed to clearing case backlog. He held a joint meeting with Judiciary’s leadership to reflect on Judiciary’s role in the fight against corruption. It was appreciated that Judiciary is independent and must remain so for the rule of law to be upheld and individual liberties enshrined in the constitution respected.

The leaders acknowledged that corruption is a cancer and therefore the Judiciary is expected to commit in playing its rightful role in the fight against the vice within the ambit of law. The Judiciary committed to ensuring that all anti-corruption cases brought before courts are dealt with impartially, expeditiously and in accordance with the law.

The Judiciary created the Anti-Corruption Magistrate’s Court and the High Court Anti-Corruption and Economic Crimes Division to singularly deal with corruption matters and designated magistrates appointed to deal with such matters across the country. The Chief Justice issued written mandate to all magistrates in the division to sit beyond normal court hours in order to fast-track cases.

The division files a daily monitoring report of anti-corruption cases and their status (mention, hearing or judgment), judicial officer handling the matter, number of witnesses availed and heard and in case of adjournment – what occasioned it. This information is shared with the public in all Judiciary digital communication platforms.

The Judiciary embraced result-based case management techniques to fast track cases. The techniques employed are bar-bench meetings; pre-trial conferences, daily court returns on cases and tracking matters in the system. Sensitising and training all magistrates in the anti-corruption court on active case management is a priority.

Judiciary has also received lots of backlash on the bail and bond terms as well anticipatory bail that is granted to accused persons, with an outcry that they are too high and unfair while others think it is a form of punishment when administered to high profile cases and persons. The constitution recognises the right to bail and bond for all accused persons regardless of the offence committed in Article 49 (1) (h) and 49 (2). Bail is meant to secure one’s attendance to court and is refundable once the matter is concluded. Its ultimate goal is to guarantee that an accused person attends trial and is not intended to be punitive.

To mitigate bail and bond issues, the Chief Justice appointed the Bail and Bond Implementation Committee that was mandated to oversight the implementation process of the bail and bond policy guidelines. The committee sensitised and trained stakeholders and the public on bail and bond. It engaged relevant actors to streamline bail and bond processes. Further, the bail and bond decision making by the courts, police and other actors in the justice system is guided by specific principles. They include the right of an accused person to be presumed innocent, right to liberty, obligation to attend trial, right to reasonable bail and bond terms.

The Judiciary has not only played its role in anti-corruption matters through policies but also in its pronouncements. According to Justice Mumbi Ngugi, allowing persons facing criminal charges to continue serving in public offices entrenches corruption and impunity in the land. The judge wondered why Kenyans have legislative authority, which they have delegated under Article 1 to the legislature who enacted Section 62(6) of the Anti-corruption and Economic Crimes Act to allow State officers whose removal is provided for in the Constitution to remain in the offices they have abused and used for personal enrichment to the detriment of the public they are supposed to serve and to continue serving while undergoing prosecution.

The judge reasoned that a governor, to whom Article 10 and Chapter 6 apply, is charged with abuse of office, adding that he is basically charged with enriching himself at the expense of the people.

"Would it serve public interest for him to go back to office and preside over the finances of the county that he has been charged with embezzling?" the judge posed.

She concluded that Section 62(6) which exempts constitutional officers from suspension because a procedure for their removal has been provided for, in her view, violates the letter and spirit of the constitution.

Kenyans are quite litigious and there is a backlog of cases where all the above factors, plus the fact that the Judiciary is not adequately resourced, play a role in causing delay in dispensation of justice. To this extent, it would be unfair to judge the Judiciary simply by the number of people convicted for corruption.

The yardstick should be consideration of all the above factors and determining what each agency needs to improve on to ensure that justice is served efficiently and effectively. To achieve this, all actors in the justice chain must pull their weight and facilitate the process.

Ms Baraza is a public communication officer at the Judiciary

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