Lately, there has been a barrage of statements, opinion articles and political outbursts terming the Judiciary the greatest impediment to success in the war on corruption.
These criticisms tend to run from a single thread that the Judiciary is not doing enough to ensure that those brought to court on accusations of corruption are found guilty.
Some have even argued that the continuing high drama prosecutions demonstrate that we now have a Director of Public Prosecutions (DPP) and a Director of Criminal Investigations (DCI) who are fully committed to the fight against corruption.
In their view, blame on failure to stop corruption is fully attributable to the Judiciary.
These arguments are not new and they seem to feed from a simplistic and tired narrative peddled by the Executive. Let me explain.
First, the problem relating to the fight against corruption is complex and cannot be blamed entirely on one institution.
Second, is it really true that the DCI and DPP are fully committed to fighting corruption or are the two men on a high-drama show whose decision on which cases to investigate and prosecute is largely motivated by extraneous and extra-legal factors?
Put another way, are they undertaking the anti-corruption work in a non-selective, professional and sustainable manner?
Third, most critics fail to understand — or deliberately misrepresent — what the role of the Judiciary is and how it should function in a constitutional democracy.
It is not that I think that no blame should go to the Judiciary in our assessment of why the war on corruption does not seem to make progress.
True, the judges at times seem overenthusiastic to issue constitutional remedies and restraining orders on what may be undeserving cases.
Additionally, it is also concerning that the laws tend to benefit the rich and famous who can rush to the high court — while a majority of Kenyan prosecuted daily in magistrates’ courts never benefit from such constitutional protection.
But a qualification is necessary here: The jurisdiction of magistrates to deal with constitutional complaints relating to criminal prosecutions was taken away by a law Parliament passed.
Regardless, the Judiciary should not continue to foster what is a two-tier system, where the rich and famous tend to access constitutional remedies relatively easily, especially in criminal matters.
Additionally, the Judiciary needs to be more hands-on in controlling the pace of completing cases to clear backlog.
Most of these delays are caused by the police, who hardly ever have evidence ready when cases come to trial; the prosecution, which is so casual and slow in disclosing evidence and often fails to produce witnesses in court in good time; and finally some notorious defence lawyers who look for the slightest excuse to seek an adjournment.
But, ultimately, the courts are to blame for failing to ensure that the police, prosecutors and defence lawyers appreciate and conform to the discipline that is needed to enable cases to be concluded quickly.
Unjustifiable delays have the potential to compromise evidence and witnesses and makes conviction, even in strong cases, more difficult to achieve.
However, I believe that the greater problem with our criminal law, and especially the fight against corruption, lies with the police, the Ethics and Anti-Corruption Commission and the DPP.
When Kenya passed the 2010 Constitution, part of the requirement was to overhaul both our legal system and the warped entrenched attitude that the law and institutions existed to serve the political class.
In the criminal law context, a number of things needed to change fundamentally.
First, by ensuring that criminal law was not used as an arbitrary tool by police, prosecutors, the Judiciary and in fact the entire state machinery to victimise or harass people.
Hence, the constitution provided an elaborate Bill of Rights. This includes the right not to be arbitrarily arrested or detained and the right to fair trial.
That is why Article 49 of the constitution requires that upon arrest, the police must inform an accused person promptly the reason for arrest.
The constitution detests the possibility where the police arrest a person then find reasons later to justify the arrest.
Yet this is a common occurrence with the police sometimes working backwards to find an offence to charge a person with.
Too often, when the police choose to charge someone with an offence they will not have the evidence ready at the time the person first appears in court, instead they ask for time to complete investigation.
True, in complex cases, investigations can continue even after an accused has been charged, but as a rule, even for such cases, there should be enough justification.
The constitution has tasked the office of the DPP with the mandate to ensure that the errors of the police, whether out of overzealousness to charge or innocent human error, are corrected early.
Before anyone can be prosecuted for an offence the DPP must be satisfied there are evidence-based reasons to do so, including that the prosecution is in public interest.
As such, before the DPP undertakes prosecution he must review the evidence from the police and make a determination that there is a good chance of conviction.
As such, the prosecutor is required to use a much higher standard than the police when arresting.
This is to ensure that no one is subjected to the stigmatising criminal process in circumstances where there is no credible evidence.
The review by DPP also ensures that credible criminal cases are not compromised by poor or subjective police investigations.
Unfortunately, too often the DPP fails to undertake the review early enough, except perhaps in high-profile cases, and even then the DPP is still erratic.
Worse still, in corruption cases, it now seems that the DCI and DPP have an unholy alliance, making the prosecutor too invested in the investigations in a subjective way.
This blurs his ability to see the blind spots in the evidence and prosecution strategy — often making the DPP an active partner in whatever excesses the police are involved in.
This approach opens the possibility that the DPP is keen on implementing a political agenda rather than acting with professional fidelity.
Nothing illustrates the disregard of basic legal principles more than the now commonplace arrests on Fridays, whose motive seems to be to keep those arrested away from court for as long as possible.
The arrest is effectively turned into a punishment in itself and not a process to facilitate prosecution.
Knowing the prevailing political environment, one claims that a pattern of selective prosecutions on corruption cases is being created and cannot be completely ignored.
Whatever the motivation for the prosecutions, there must be an avenue for testing these cases through sound evidence and other legal standards, and the Judiciary has the constitutional mandate to offer this channel.
The Judiciary acts as a buffer between politics and the accused besides affording equal protection of legal rights.
Any attempt (whatever the form) to water down the cardinal principles of law will be a straight path to anarchy.
The constitution insists that the Judiciary must be independent and impartial.
Independent from the influence or excitement of the political state or the irrational or emotional agitations of the public.
Impartial in how it assesses every case brought before it to ensure that disputes are not resolved on the basis of the exigencies of the day but on an objective evaluation of facts and the law.
In doing so, the Judiciary is expected to act independently and impartially and there is no place under the constitution for it to conspire with a party to facilitate a subjective outcome.
This is key to make sure that those who wield instruments of power and coercion — such as the Executive, DCI and the DPP — use that power in accordance with the law.
Where there has been significant violations of the constitution at any stage — or where prosecutions are undertaken for illegitimate purposes — the courts are right to intervene regardless of the subject matter of prosecution.
We need relevant and applicable norms that can help our society to move forward, appreciating the multi-faceted nature of the problem. However, this is not a task for the Judiciary alone.
A starting point should be the National Council on Administration of Justice (NCAJ), which brings together the Judiciary, police, DPP, prisons and the Attorney-General among others.
It is in that forum that honest discussions on how to develop a fully functional and sustainable criminal justice sector should be held.
It is there — and not at State House — that a holistic review should be conducted on laws, rules, orders and attitudes that frustrate investigation and prosecution of critical criminal matters, including corruption cases.
In the end, objective, professional, politically indifferent, methodical and sustained investigation and prosecution as well as speedy and fair trials are the only ways to assure results in the war on corruption.
Waikwa Wanyoike is a constitutional lawyer