Time for honest debate on role of Judiciary
What you need to know:
The justice process may take long and, at times, has its inconveniences.
However, the alternative is a chaotic society.
The idea of a person being convicted without the due process being followed may seem fancy until you are the victim of such a system.
Of late, there has been a vicious campaign against the Judiciary. The courts have been accused of abetting all manner of crimes — from corruption to terrorism. Kenyans from all walks of life have joined the bandwagon that has branded it wakora (conmen).
The claim that the temple of justice has become a safe haven for criminals is scary. The main question, however, is whether such an allegation is justified or is a mere ploy by some other agencies to evade responsibility.
FACTS TWISTED
In the midst of the blame game, no one has stopped to ask what the role of the other agencies in the justice system is. The Director of Public Prosecution (DPP) and the Director of Criminal Investigations (DCI) have not been put to task over the manner in which they discharge their mandate — never mind they play an important role in the dispensation of justice.
I do not hold brief for the Judiciary; neither do I opine that it is perfect. However, to blame the courts for all manner of problems bedevilling our society is totally unfair.
Our country has an adversarial justice system. The judge waits for the prosecution and the defence to submit their arguments and makes a decision based on the evidence presented in court. Even where the judge believes the accused committed the crime, he or she cannot convict the suspect unless the prosecution presents evidence beyond reasonable doubt tying them to the crime.
If we are uncomfortable with the justice system, then nothing is easier than to amend the Constitution to allow for medieval trials — where an accused is brought before the public and, if the people feel that he or she is guilty, they mete out justice immediately. Under that system, an accused is guilty until proven innocent.
As Kenyans shout about the incompetence of the Judiciary, certain facts have either been lost or deliberately twisted. First is the right to bail. Article 50 of our supreme law states that an accused person is presumed innocent until the contrary is proved. Article 48 gives an arrested person the right to bail or bond.
Of course, bail can be denied where there are compelling reasons to do so — like if the accused is a flight risk. The courts have denied bail on numerous occasions; hence, calls to deny every accused person bail simply because Kenyans are angry is absurd.
WRONG ARREST
Guilt can only be determined in court and based on evidence. Even where the society believes that a person committed a crime, unless the prosecution can prove it that person will be set free — and that is justice.
The justice process may take long and, at times, has its inconveniences. However, the alternative is a chaotic society. The idea of a person being convicted without the due process being followed may seem fancy until you are the victim of such a system.
It does not follow that every accused person committed a crime. There have been many instances of the police arresting the wrong person or forcing arrested people to confess to crimes that they did not commit. That is why there must be an impartial way to evaluate the arguments of both the prosecution and the defence.
To uphold the rule of law, every accused person must be accorded the right to a fair trial, which involves the presumption of innocence until proven guilty.
Mr Simba is a Nairobi-based lawyer. [email protected]
