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Time quickly running out for Judiciary to protect rule of law

Sunday March 10 2019
MWAPIC

The Supreme Court. The court must improve Kenyans' access to justice. PHOTO | FILE | NATION MEDIA GROUP

By PAUL MWANGI

We have not forgotten that in January this year, the Judicial Service Commission (JSC) started the process of disciplining 12 judges against whom complaints had been made.

The JSC set up two committees to begin processing the cases and make reports to the full commission for further action.

The committees were to begin working on February 1. We are watching and waiting.

Notable though is the precious little information the JSC gives about complaints and disciplinary cases against judicial officers.

The JSC is meant to lead all other government institutions in openness because the Judiciary is mandated to enforce transparency and right to information that is guaranteed under the Constitution.

BRIBERY CLAIMS

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It is always impressive to see the JSC conduct its interviews on national television, but it all looks very hypocritical when the Commission is unable to provide information regarding its equally important mandate of disciplining judicial officers.

We also remember that Senior Counsel Ahmednasir Abdullahi promised to file a petition this coming Wednesday before the JSC against judges whom he says were bribed to make a favourable finding in the Wajir election case at the Supreme Court. We are equally watching and waiting.

Mr Abdullahi’s allegations turned out to be controversial, with the public expressing a mixture of admiration and cynicism.

I was personally cynical as I recalled the criticism he has in recent past levelled against me for my articles on the Judiciary.

But to dismiss him on this issue is to throw away the baby with the bath water.

CORRUPTION

The Senior Counsel’s reaction is reflective of the attitude we must have towards corruption in this country.

We are way too diplomatic when dealing with cases of suspected corruption and our courtesies have become a perfume that masks the smell of rotten transactions when they happen.

Take the recent decision by a magistrate’s court to fine a convict Sh600,000 for corruption that led to the loss of over Sh12 million of public funds.

Don’t cases like this attract questions about the magistrate? And if the Judiciary cannot give us a proper explanation of what kind of justice this is, then we have to turn to matters integrity.

The usual challenge made to the public when these accusations are made against judicial officers is that the courts have their hands tied by the law. But what the law says is as follows.

PENALTY

Firstly, that a person found guilty of corruption is liable to a fine of Sh1 million or up to 10 years imprisonment or both.

“Or both” means the magistrate does not have to offer the option of a fine. If the magistrate is convinced that a custodial sentence is necessary, the law allows the magistrate to impose a jail term without the option of fine.

But the powers of the special magistrate do not end there. The special magistrate has the power to punish the convict with an additional fine and make an order of compensation against the convicted person as an additional provision to the sentence imposed.

If the convict received any benefit from the transaction or caused any person a loss by his actions, the special magistrate can impose an additional fine of up to two times the value of the benefit received or the loss caused.

In respect of compensation, the law says the special magistrate shall make an order of compensation of the loss suffered at the time it convicts the suspect.

The words used by the law are “shall”. The special magistrate has no option in this matter.

JAIL SENTENCE

So, our convict referred to above could have legally been jailed for 10 years, fined Sh1 million and further ordered to pay the people of Kenya the sum of Sh24 million in compensation.

But it didn’t happen because the hands of “the court were tied”. The only question is, who tied the hands of the court because it’s most definitely not the law that did it.

What we have instead is another attempt to introduce a perverted jurisprudence that is saying that a special magistrate must give a person convicted of corruption the option of a fine.

And a high court judge has quashed a jail sentence against a convict on this basis.

The judge said that though the trial court had discretion to determine the right sentence in the case, it was improper to impose a jail sentence without the option of a fine.

But improper for who? The convict? How is it that it only becomes improper in corruption cases?

How many chicken thieves have been given an option to pay a fine and buy another chicken in order not to go to jail?

As argued before, there are definitely two sets of laws in Kenya: for the rich and for the poor.

UNIFORMITY

I would go the way of Mr Abdullahi and say that some decisions on corruption cases are tainted with corruption and the judicial officers seems to have eaten.

Let us not shy away from stating the obvious. We are extending courtesies to people who are hell bent on ruining our lives so that they can make theirs.

The Judiciary in its “Sentencing Policy Guideline” rightly observes: “There exist notable disparities in the length of imprisonment of offenders committing same offences in more or less similar circumstances.

"There is lack of uniformity and certainty in the sentences likely to be imposed. This has contributed to the negative perception against the Judiciary and lends support to claims of corruption and unprofessionalism.”

In the same sentencing guidelines, the Judiciary says that there are aggravating circumstances that require courts to give stiffer sentences on the convicted person than would be ordinarily imposed.

And it lists abuse of trust and authority as an aggravating circumstance. That covers basically all corruption cases.

IMPUNITY

We come back to the Chief Justice and the JSC and wonder whether they read the news on these outrageous sentences that are being passed by judicial officers.

I would think that the refusal by a judicial officer to adhere to the Judiciary’s sentencing policy would constitute a disciplinary issue.

But Kenyans are not holding their breath waiting for action. The levels of impunity are becoming insurmountable.

The frustrations of the public are increasing but the theft and impunity are rising.

The only question that remains is who will lose: the people of Kenya or the corrupt and their sympathisers?

REVOLT

The people of Kenya will not lose to a small clique of reprobates and their sympathisers.

They have stolen everything until, with nothing left to steal, they make us take loans so that we have something that can be stolen.

They have robbed us till we are poor and now they are robing our children. And when we complain, some people are telling us that their hands are tied.

I would express the same fear that the President did a couple of days ago that time is running out.

There is the real danger the people will take the law in their hands. It has happened in Kenya before.

When most police officers went to bed with violent criminals, vigilante-style operatives like “Hessy wa Dandora” and “Hessy wa Kayole” cropped up.

There were ‘Hessys’ in every crime prone area. And they received support and acclaim from the public.

Our corruption kingpins and their sympathisers need to change their ways before “Hessy wa corruption” becomes another reality.

Paul Mwangi, an advocate of the High Court of Kenya, is former Prime Minister Raila Odinga’s legal advisor.

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