In its editorial of November 3, 2018 entitled Country wants results in anti-corruption war, the Daily Nation stated as follows:
“The Judiciary is an independent institution yet it operates within an ecosystem … Thus, in the execution of its mandate, the Judiciary ought to be alive to the country’s impatience and act accordingly.”
The Chief Justice must be believed when he promises that the Judiciary will play its rightful role in this anti-corruption war.
He, however, must be criticised for failing to fully appreciate the role of the Judiciary in this war and also for failing to innovate strategies of how the Judiciary will play this role.
A critical analysis of the attitude of the Judiciary towards the anti-corruption war indicates that it is alienated from the people of this country in their aspiration to live in a corruption free society.
The simplest concern has been that corruption cases take too long. This is a complaint as old as the war against corruption.
Every Chief Justice promises to deal with this complaint.
The most recent promise was made by CJ David Maraga when he spoke at the Law Society of Kenya Annual Conference at Leisure Lodge in Kwale in August last year.
Beyond words, the CJ has been unable to innovate ways in which the Judiciary can make these cases move faster.
This is despite the fact that the Anti-Corruption and Economic Crimes Act allows the Judiciary to treat corruption cases as special and to prioritise them above all other cases.
The Act, in fact, requires that they be heard on a day-to-day basis. The Judiciary has failed to come up with strategies to ensure that this happens.
Instead, it blames lawyers for accused persons for delays through unnecessary adjournments and also prosecutors who aren’t fully prepared to present their cases.
But that is precisely the challenge we want the Judiciary to deal with. We want the Judiciary to stop playing victim and take charge.
We want every court from the trial magistrates’ court to the Supreme Court to set down the rules on the handling of corruption cases in Kenya.
In doing so, the Judiciary must remember that it is part of Kenya.
By this it is meant that whatever the challenges we as a country have, the Judiciary must accept the challenge as part of its reality and must find a way to work alongside that challenge in doing its work.
Take, for instance, the fact that we do not have many expert forensic prosecutors.
This makes prosecutions difficult and cases a bit harder to prosecute.
But are we going to keep releasing thieves on the basis that the prosecution was not as perfect as it could be?
Kenya has many challenges in prosecuting corruption cases but that is our reality. We must work with that.
We must develop our own rules on how to prosecute and decide cases in a country that has so many challenges.
The Judiciary must stop having unrealistic expectations from the criminal justice system. Even primitive societies have systems of criminal justice.
In any event, the prosecutors in our criminal justice system are Kenyan, they have studied in Kenya and are employed by Kenya.
Since the most fashionable excuse when cases are thrown out is to blame prosecutors, let’s then agree that all Kenyan lawyers are not that smart.
We can’t be if we attended the same schools and were taught by the same lecturers as these prosecutors.
So we have prosecutors who are not that smart, defence lawyers who are not smart either and judicial officers, also not that smart.
Now let’s come up with a system of criminal justice that can be run by people who are not that smart. That’s the only system that would work for us.
But the Judiciary is unlikely to join this coalition of the "not very smart" because it has developed a sense of infallibility.
Since the time when the NARC government came to power, we have undertaken many initiatives to clean-up the Judiciary; beginning with the controversial radical surgery of 2003 and ending with the constitutional vetting mechanism mandated by the Constitution 2010.
The unfortunate result of all this sanitisation is that we have created a sense of judicial infallibility.
Judicial officers feel that they are clean because the Judiciary has been cleaned, and this has made them impervious to criticism.
They do not appreciate the grave concern of Kenyans that they are totally alienated from the rest of the country in the aspiration to slay this dragon called corruption.
We need our Judiciary to understand that, first and foremost, it is a part of this society.
As corruption ruins the life of every Kenyan, it is ruining that of every judicial officer, their spouses, children, relatives and friends.
The judges and magistrates cannot afford to have the same attitude towards the challenges of this society as did the post-independent expatriate judges who notoriously would not pay any regard to the social and political challenges of the newly independent nation.
When we demand that the Judiciary must play its role in the fight against corruption, we mean that it must, from where it sits, become an active participant in the fight.
And it will do so by reviewing its processes, procedures and philosophies and contributing in developing a criminal justice system that will make it easier for this country to seek and root out all these purveyors of corruption that are ruining our lives and destroying our society.
In this, the Judiciary has no choice. We refuse to watch silently as our lives are ruined by a small coterie of greedy and heartless criminals while the Judiciary keeps passing the blame on everyone else but itself.
We Kenyans have many issues with the criminal justice system and its agencies, and these are robustly expressed in many forums.
But we also have similar grave issues with the Judiciary and we are getting exasperated that it is refusing to take responsibility for its failures.
We demand to be taken more seriously. We demand to have our aspirations respected.
And it is our aspiration to live in a corruption free society. And we demand that all our institutions, the Judiciary included, become active participants in the effort to root out all the corruption kingpins of our society.
This should start with the Judiciary first engaging in a thorough introspection of how it handles corruption cases. The Judiciary is very capable of successfully doing this.
After the 2013 election petitions, the Judiciary undertook an introspection regarding its handling of these cases.
It came up with a report which all lawyers would accept, going a long way in streamlining the handling of election petitions in Kenya.
We would want to see the same done in respect to the war on corruption.
We are fatigued by the usual rhetoric from one CJ to the next that ‘the Judiciary will deal with corruption cases in accordance with the law’.
We want to see a judicial policy and practice directions on pre-trial and trial processes, asset freezing, sentencing and asset recovery.
And to repeat a desperate plea expressed above, we want the Judiciary to rise up and take charge.
It must unapologetically set its own rules as the Kenyan Judiciary for purposes of assisting the war against corruption.
There is no other institution, local or foreign, to which we have delegated our Judicial authority.
It should therefore not look over its shoulders in deciding how this should be done in Kenya.
Going back to “presumption of innocence”, which has become the shroud under which impunity is being perpetuated, there are two issues the Judiciary should consider:
Firstly, there is no presumption of innocence before a person is charged with a criminal offence.
The jurisprudence that is now slowly being developed which justifies the protection of suspects from criminal investigation is an existential threat to our society.
This trend will bode us ill in the long run. Despite all their criticism of the criminal justice system, Kenyans do not want to see the Directorate of Criminal Investigation and the Office of the Director of Public Prosecution emasculated; particularly now when there seems to be a chance that they will be reformed under the new management.
Nobody, whatsoever, should be immune from investigation at any time. This, I dare say, is something all we Kenyans are agreed on.
The second issue is that the “presumption of innocence” is not an absolute doctrine.
There are many instances under the law where even with the “presumption of innocence”, accused persons are obligated to convince the court that their conduct was not illegal.
These are called “reverse onus provisions”. They shift the burden of proof from the prosecution to the accused. They are provided for in our own Evidence Act.
This is one area in which we want to see the Judiciary introspect on because, currently, we are not placing the obligation the law allows us to on persons accused of corruption.
For this reason, many rather simple prosecutions are lost because an impossible task was left on the shoulders of prosecutors while it should have been transferred to the accused.
This is a discussion for another platform. Let it suffice to end this by saying that in my analysis of the fortunes of the Kenyan Judiciary over the years, it is not a good sign when Kenyans start getting this restless. It never ends well.
Mr Mwangi is author of The Black Bar: Corruption and political intrigues within Kenya’s legal fraternity and the legal adviser to ODM leader Raila Odinga.