In a country where we are focused on, and are unduly fascinated by the political, the salacious or the negative, the numerous acts that give hope hardly find space in national discourse.
They are easily ignored or quickly forgotten. But truth be told, every day in Kenya there is something to celebrate, even as despair is oftentimes not too far off.
One of the institutions that regularly produces positive morsels is our Judiciary. Granted, many of its ailments remain, including case backlogs, delayed judgements, and whispers of corruption, but on numerous occasions the courts have breathed hopeful life into the Constitution.
Unsurprisingly, even in this regard, we tend to focus on the political cases particularly the presidential petitions or the numerous Okiya Omtatah cases, like the ongoing one on the Finance Act.
In reality, many judges render landmark decisions which may not be overly political or contentious, but nonetheless have significant implications on the rule of law and constitutionalism.
Recently, newly appointed High Court Justice Prof Nixon Sifuna has rendered several laudable decisions relating to the criminal justice system whose implications on the rule of law is heartening.
The first case relates to an attempt by the Assets Recovery Agency to withdraw a money laundering case. Earlier on, the agency had applied for forfeiture of substantial monies belonging to suspects in the case, on the basis that the monies were proceeds of crime.
Lengthy affidavits had been sworn indicating how the investigative agencies had determined that the money was being laundered. Before the case was prosecuted, the agency applied to court to withdraw the case against the alleged money launderers. The general practice in similar circumstances has been to allow investigative and prosecutorial agencies to withdraw such cases without further enquiry. But Justice Sifuna would have none of that.
He wondered how the same agency that had provided extensive reasons for declaring the monies proceeds of crime had completely abandoned their case and without any explanation, were seeking to withdraw the case and consequently return the money to the alleged suspects.
The judge rejected the withdrawal application and required that a comprehensive affidavit be filed by the CEO of the agency detailing reasons for the actions taken before he could issue further orders.
In the second instance, the same agency had sought to have funds in another case forfeited on the basis that they were proceeds of crime. In this case, the good professor had no issue with the orders sought by the agency. His concern was with where the monies, once forfeited, would be deposited.
He noted that under the applicable legislation, a “Criminal Recovery Fund’ was to be operationalised by the Treasury so that monies forfeited to the government would be deposited there. This had never happened. The judge’s concern was that all such funds being forfeited were being paid to the Assets Recovery Agency without clear rules of how they would be managed once paid to the agency.
He raised several issues including the audits of such monies, along with the substantial interest inevitably accruing on the funds. Were there risks of the monies being misused, he wondered? Consequently, he required that the monies be paid to the Treasury in the interim pending operationalisation of the fund.
He then required the Treasury to facilitate this process with immediate effect and file an affidavit within set timelines evidencing such operationalisation. He also ordered that all funds held by the agency be transferred to the Criminal Recovery Fund once operational.
Further, the judge ordered an audit of all these funds including any interest that may have accrued therefrom. I share these cases to show how a conscientious judge can innovate within the law to ensure laws meet their substantive intents.
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In many instances, our courts are so caught up with technical adherence to the law that they never ask fundamental policy questions about the purpose of the law.
Justice Sifuna joins an admirable list of judicial officers who look beyond the letter of the law and make us jivunia kuwa Wakenya. May this trend continue and may the society of progressive judges expand.
-The writer is an advocate of the High Court of Kenya