President’s remark on anti-graft war triggers hot debate

What you need to know:

  • On Tuesday, institutions tasked with fighting corruption were involved in a blame game during a summit held at State House, Nairobi.
  • President Kenyatta exonerated himself from blame as the Directorate of Criminal investigations, the Ethics and Anti-Corruption Commission, the Director of Public Prosecutions and the Attorney-General and the Judiciary pointed fingers at one another. 
  • During the Mashujaa Day celebrations, the President ordered the release of 7,000 petty offenders from prison to give space for corrupt individuals. 
  • Law Society of Kenya president Isaac Okero said the President should not be seen to breach the constitution.
  • Attorney-General Githu Muigai said the President did not direct judges on how to carry out their duties.

President Uhuru Kenyatta’s move to pile pressure on the Judiciary and investigation agencies in the war against corruption has reignited debate on the most intractable problem in Kenya.  

On Tuesday, institutions tasked with fighting corruption were involved in a blame game during a summit held at State House, Nairobi.

The country was left no wiser as President Kenyatta exonerated himself from blame as the Directorate of Criminal investigations, the Ethics and Anti-Corruption Commission, the Director of Public Prosecutions and the Attorney-General and the Judiciary pointed fingers at one another. 

On Wednesday, as he swore in new Chief Justice David Maraga and as he commissioned the second phase of the standard gauge railway, the President once again criticised the Judiciary for its handling of cases involving corruption and infrastructure projects.

Then on Thursday during the Mashujaa Day celebrations, the President ordered the release of 7,000 petty offenders from prison to give space for corrupt individuals. 

Lawyer Paul Muite said the President’s remarks amounted to undue pressure on the Judiciary.

“The constitution guarantees an individual’s right to a fair trial. What the President said amounts to pressuring the Judiciary, in other words interfering with the Judiciary,” he said.

Mr Muite said the war on corruption cannot be won through blame games.

“The President should find out how high corruption is within government and deal with it from the top without leaving any sacred cows,” he said.

Law Society of Kenya president Isaac Okero said the President should not be seen to breach the constitution.

“Presidential suggestions, because they are presidential, skirt very close to the line that Article 160(1) of the constitution represents. His complaint as to injunctions in procurement cases is a case in point. It is best to keep as much distance from that line as possible.

NATIONAL ASPIRATIONS

As much as the President is entitled, as any citizen is, to express his opinion on the Judiciary, the 2010 constitution captures our national aspirations and the independence of the Judiciary is a key component of the public’s expectation. And essential to good governance. The nature of further comments and more importantly the reaction of the CJ and the Judiciary will tell us whether Article 160(1) has been breached,” he said.

But Attorney-General Githu Muigai said the President did not direct judges on how to carry out their duties.

“The President has not directed the Judiciary on what to do. The Judiciary is an independent arm of the government. Each individual judge decides the case in front of them on the evidence and the law.  We in the Executive are very aware of that. What the President has said is that the judicial arm of government must be timeous in delivery of justice, whether it’s acquitting the person or convicting him – that must happen within reasonable time. It can’t be correct to say the President has told Judiciary to send people to jail,” he said.

The President’s recent remarks mirror his State of the Nation address to Parliament in March last year when he tabled 175 names under investigation by EACC.

The President directed the Commission to complete investigations over the allegations within 60 days. He further directed those mentioned in the said list to step aside from their respective offices awaiting investigations. Five Cabinet Secretaries and several Principal Secretaries were among those suspended, and later sacked.

But a three-judge bench would later rule that this was unconstitutional. Justices Mumbi Ngugi, George Odunga  and  Joseph Onguto said that the President had gone beyond his mandate. “The President ought not to have given such directions. Such directions, though not meant to compel the Commission to act in a particular manner, were no doubt meant to exert pressure on the Commission to finalise its investigations within a definite span of time notwithstanding the complexity and the magnitude of the investigations involved,” they said.

They said his actions amounted to unlawful interference with the actions of an independent commission and that he  not only abdicated his role as a person and as the President but was clearly in breach of the provisions of the Constitution.

The suit had been filed by former cabinet secretaries Michael Kamau and Charity Ngilu.

The most striking issue at the accountability summit was how investigating officers blamed the Judiciary but a look at past cases point to disappointing weaknesses in their own work.