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Stop bashing the judiciary in corruption war
By Peter Abwao | Updated Apr 23, 2019 at 11:43 EAT
The Judiciary of Kenya (Courtesy)

In the 19th and 20th centuries, it was common practice for countries to suspended or ignore their constitutions during times of war

In Kenya, there seems to be a war going on, and it is not that fight against the ragtag militia with roots in Somalia called Alshabab

In the 19th and 20th centuries, it was common practice for countries to suspended or ignore their constitutions during times of war. At such times, the state would have a free hand to do whatever it desired, including arresting those who were thought to be collaborating with the enemy and locking them up without following the due judicial process. 

In Kenya, there seems to be a war going on, and it is not that fight against the ragtag militia with roots in Somalia called Alshabab. There appears to be a consensus that the big war now is that against our age-old enemy corruption. It is for this fight that our democratically elected government seems willing to have our rights, particularly that to fair trial suspended. In yesteryears, the trend was that the Anticorruption agency would investigate cases and forward files to the director of public prosecutions to determine whether they merit prosecution.

In many cases, the DPP didn't take the cases to court claiming a lack of sufficient evidence. Many have alleged that officials in the office of the DPP and EACC had formed a criminal conspiracy with their EACC counterparts which ensured that half baked cases are presented merely for rejection. Even those that would eventually make it to the courts were either dismissed for lack of evidence or on some technicality or the other.

Today we have a new system where the director of criminal investigations (DCI) is more involved in corruption investigations.

Coupled with a new DPP, this has injected fresh energy in the so-called war against graft. However, the new DPP and DCI have appeared overzealous in their attempt to show some results to the extent that they may be inadvertently shooting themselves in the foot. They have found a punching bag in the name of the judiciary to blame. At the anti-corruption multi-agency conference held in Nairobi, the DCI narrated a story of how Italy defeated the infamous mafia that had captured the Italian state in the 70's throughout the 1980"s. He rightly argued that it took a concerted effort from all relevant agencies of government to defeat the mafia. 

What Mr. Kinoti ought to note, though, is that nowhere is it reported that that war was won by agencies subverting the rule of law.

It is a fact that criminals thrive in an environment where state agencies do not apply the principals of law fairly and firmly. It is for this reason that the current chorus of condemnation directed at the Judiciary is self-defeating. The last thing you want to have in the war against corruption are kangaroo courts where decisions are predetermined.

Recall the days when Benard Chunga one of the most notorious DPP's went to court armed with both the charge sheet and the judgment? Well, perhaps Nordin Haji and George Kinoti want to borrow a leaf from their most infamous predecessor. The rules of natural justice are such that suspects are taken to court to be tried and not to be proven guilty. It is assumed that suspects are presumed innocent until due process proves otherwise.

It doesn't matter how much the public thinks the accused is guilty. Justice must always be our shield and defender as espoused in our national anthem

As a Christian have the trial of Jesus as an excellent example of how not to gauge guilt based on public opinion. As is documented in the holy bible, Jesus Christ was convicted by Pilate for a crime that probably didn't even exist in law! Of course, there may be judges who use the bench to advance selfish interests. I will come as no surprise that given the collective rot in our society, there are bound to be corrupt judges. Weeding out those judges is oaty of Kinoti and the DPP's job. They must be investigated, charged and prosecuted just like other mortals.

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I have heard it whispered in legal circles that the greatest gift that Dr. Willy Mutunga, the first Chief Justice under the 2010 constitution, gave to the judges and magistrates was the freedom to decide cases in their chambers and solely on their judgment. There are no longer calls from the office of the chief justice asking them to decide cases one way or the other. This means that if a judge is influenced by forces outside the evidence presented in court, then they will carry their cross. To win the fight against corruption;, therefore, we must allow due process to take place at all cost.

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