Maraga tells critics to stop accusing Judiciary of laxity

Chief Justice David Maraga Monday told off those accusing the Judiciary of laxity in the ongoing war against corruption, saying the cases will be determined based on the evidence and not the strength of public passions.

The Judiciary has in the recent past come under attack from the Executive and politicians, who accuse it of reluctance to aid the fight against corruption. Both President Uhuru Kenyatta and ODM leader Raila Odinga have on different occasions questioned the bail terms given to suspects.

MOLESTED

Last week, Mr Odinga claimed that the Judiciary was standing in the way of the renewed fight against graft, but Justice Maraga said yesterday that the war would not be won on the intensity of emotions, but strict adherence to the rule of law.

The CJ spoke during the swearing-in of the new Ethics and Anti-Corruption Commission Chief Executive Officer Twalib Mbarak at the Supreme Court in Nairobi, where he also advised that investigative agencies must be thorough if they expect convictions.

“If, for whatever reason, you think you might not win a case, then if you bring it to court you know the result. It will be dismissed,” cautioned Justice Maraga.

Mr Odinga, speaking at a public lecture at the University of Nairobi on January 11, posed: “Is the Judiciary participating fully in this war when culprits have been arrested, taken to court and given bail and they are able to go back to work and are treated like angels who are being molested by society?”

Accusing the courts of failing to read the signs of the times, Mr Odinga said suspects were accused of “some of the worst crimes” yet they are “allowed to go back and work, sack people and interfere with evidence”.

“Is the Judiciary an ally in the war against corruption?” he asked.

Justice Maraga said that, while the courts were ready to hear corruption cases, he would not allow anyone to use them as scapegoats whenever inadequate evidence led to the dismissal of charges.

IMPUNITY

“If you bring a hopeless case, we will say in our judgment why we are dismissing it, and the public will know where to place the blame. If you bring us a strong case and we are the ones playing monkey business, the public will also see,” the CJ said.

President Kenyatta has on three different occasions also accused the Judiciary of derailing the war on corruption through “ridiculous” bail terms and slow pace of hearings.

He has also repeatedly urged the courts not to protect impunity by granting suspects' requests that derail investigative agencies and undermine the resolve to stem the vice.

"These individuals deserve fair trials, but nothing more,” President Kenyatta said during Jamhuri Day celebrations on December 12, last year. “I am again calling on the Judiciary to ensure that its procedures are not used to protect impunity.”

In his New Year’s message, the President said he would enhance the mandate of the Asset Recovery Agency to aid, through court processes, the freezing and confiscation of the assets and bank accounts of fraud suspects.

“Individuals charged with corruption offences will not be allowed to flaunt their ill-gotten wealth as court proceedings are ongoing,” he warned. "Once the suspects are convicted, the assets will be transferred to the Criminal Asset Recovery Fund, ready for use to finance projects and programmes that will improve the lives of Kenyans.”

INDEPENDENT

During a meeting with journalists on December 28, last year, the President again complained that graft cases had been taking unnecessarily long to be concluded, and lamented that fraud suspects were using the Judiciary to defeat the cause of justice.

The CJ’s defensive comments came shortly after Attorney-General Kihara Kariuki challenged the Judiciary to step up its game in the ongoing anti-graft campaign.

The AG said the expectations of Kenyans had not been fulfilled because too much time had been spent talking without corresponding results.

He said that while the Judiciary was independent, “independence can be no substitute for either impunity, or not doing what is right.

“It cannot be right that the agencies responsible for investigations are prevented from doing what the Constitution and the rule of law requires them to do,” Mr Kariuki said, adding that he was a lawyer for an accused person in 1993 but the case was yet to be determined.

However, Justice Maraga stood his ground in defence of the Judiciary, noting that, while he understood that the public was tired of the mega-corruption scandals that had led to the loss of tens, perhaps hundreds of billions of taxpayer shillings, public confidence in the justice system would only be restored if all the stakeholders in the anti-corruption war played their roles well.

He said the Directorate of Criminal Investigations (DCI), the office of the Director of Public Prosecutions (DPP), the Ethics and Anti-Corruption Commission (EACC), and the office of the AG would change the course of this country and, by extension, the livelihoods of Kenyans, if they pulled in the same direction.

INTERFERENCE

“I am happy the DPP and the DCI are here. Please bring cases to court when you are ready. If we ask you to start hearing the following day, depending on whether the accused will have been given an opportunity to prepare, you should be ready to proceed,” Justice Maraga told the DPP Noordin Haji and Director of Criminal Investigations George Kinoti.

But even as the CJ spoke, ODM chairman and National Assembly Minority Leader John Mbadi said that while the party supported efforts to fight graft by the different government agencies, the claims and counter-claims between the DPP and the Judiciary would not aid the war.

“This amounts to interference with the judicial process because the suspects have a right to be granted bail by the courts. What if they are denied bail and it turns out they are not guilty? It is the business of the DPP to bring watertight cases and not blame the courts for granting bail,” Mr Mbadi said.

“We have seen courts deny suspects bail and even hold them beyond the required time so that the DPP can have time to piece his cases together. We cannot give the DPP a blank cheque to determine who gets bail and on what conditions; the court is the last arbiter.”

On the backlog of cases in court, Justice Maraga said he had already brought 10 magistrates from other stations to ease the burden, and that a building was currently being renovated to create more court rooms.

“The 10 magistrates will be there to hear these cases on a day-to-day basis,” he said. “My instructions to them is that when a case starts, they should put everything else aside and deal with it.