The legitimacy of courts and the rule of law: The Babu Owino affair

Wednesday March 18 2020

Nairobi motorists woke up one Tuesday morning to banners hanging strategically on Thika Road's overpasses. “Why is the majority of inmates in Kenya the poor people” one banner questioned. The other read, “The Akashas were free in Kenya for over four years with cases but were jailed in two months by a USA court”. Both of the banners declare that “We demand a working judiciary free of corrupt judges now!”

The sentiments expressed on the banners came on the heels of an incredibly sensational case: Republic v Paul Ongili Babu Owino, reported as the Criminal Case no. 110 of 2020. The facts are well known to most of us, but we recount them briefly, nevertheless.

On the January 17. 2020 at B Club, Galana Plaza in Kilimani, Nairobi, the accused, the Honourable Paul Ongili, Member of Parliament for Embakasi East, commonly known to the public as Babu Owino, shot DJ Evolve (Felix Odhiambo Oringa) on the neck.

Unfortunately for Babu Owino and his legal defence team, the facts of the matter were not in dispute in the public’s mind. A CCTV video shared numerous times on social media captured Babu Owino actually pulling the trigger and subsequently dragging the body of Felix Oringa through the Plaza’s corridors.

On the January 27, 2020 the court, with Chief Magistrate W. F. Andayi presiding, granted him cash bail of ten million shillings. The magistrate, in justifying his reasoning, wrote: “The court understands that the emotions run high at (sic) instances of murder cases. But again, the rule of law takes precedence and must be read carefully against the circumstances of each case.” It is here, that our tale begins.

Understanding the law on bail and bond

The purpose of this article is not to assail or laud the merits of the bail ruling delivered on the 27th. Of importance to us are the sentiments expressed on the banners. How do courts cultivate their own legitimacy? How do they make people believe in them? Before discussing this, it is necessary to explain briefly the law on bail and bond in Kenya.

Bail and bond are instruments at a criminal court’s disposal. These are terms or conditions on which an arrested person is set at liberty pending trial, or at times, pending appeal from a court’s decision. The rationale for bail and bond stems from the principle that one is innocent until proven guilty. The law devised this mechanism in an attempt to honour this underlying tenet of criminal law while preventing an accused person from absconding.

How does it work? The court releases someone, depending on the severity of the charge, on various terms. This could be on one’s own assurance – known legally as on one’s personal recognizance; on cash bail – which is money deposited in court until the trial is complete; or on an undertaking guaranteed by sureties or by security. In the event that the accused defaults from attending court, they are taken into custody and the money deposited in court or the property pledged is forfeited.

Prior to the Constitution of Kenya 2010, some offences were bailable whereas others were non-bailable. Article 49(1)(h) however removed the distinction between offences by making all offences bailable. This includes capital offences such as murder. The only reason for denying bail as per the Constitution, is in the event that there are compelling reasons why the accused person should not be released.

What this means is that post-2010, the presumption is that an accused is entitled to bail. It is the Prosecution’s responsibility to present to court compelling reasons why an accused person should not be released. Some of these compelling reasons are found in the Criminal Procedure Code (CPC) and they include: the nature or seriousness of the offence; the character, community ties, and associations of the accused person; the accused’s record in fulfilling bail terms; and the strength of the evidence against the accused.

The Bail and Bond guidelines list more compelling reasons. These include the accused’s likelihood to be a flight risk, interfere with witnesses, or threaten public order, peace or security. The Court may also deny bail to protect the victim and witnesses and to protect the accused from self-harm. In the event that the prosecution is unable to present evidence proving any of the above reasons, the Constitution guarantees the accused person’s release.

Whether the accused person is granted bail depends on the strength of the prosecution’s argument against the accused’s application. The crime does not bar one from the right to be released on bail or bond. Babu Owino, regardless of the shocking callousness with which he shot DJ Evolve, has the constitutional right to bail – unless of course, the prosecution adduced compelling evidence to convince the court why he should be kept in remand. The Court seemed to think that the prosecution failed in this regard.

Andayi’s ratio decidendi – the legal reasons

We not do wish to relitigate this case. We will not delve into the merits of the Chief Magistrate Andayi’s (CM) interpretation of the law regarding “compelling reasons” and his evaluation of the evidence adduced by the prosecution. If we did so, we would be making a legal argument. Our focus, as has been the public’s these past few days, is his orders and the reasoning he gives for them.

In law, there are various components in a decision. The legal reasoning that an arbiter (arbitrator, judge or magistrate) gives, is known as ratio decidendi. It is tied to the law and a reader can follow it to the arbiter’s conclusion at the end. It is the most important part of the decision as it ties together the facts and the law to solve the dispute.

Another component that is less important compared to ratio is what we call the obiter dictum. This is Latin for “By the Way”. It is judge’s opinion written into the decision that is not essential to the decision. It is irrelevant legally speaking and is not legally binding as precedent.

On page 25 of the ruling, the CM introduces a new consideration, found in no written law on the right to bail. The accused person, he notes, is covering the victim’s medical bills. This he finds undoubtedly important as it is crucial that the victim receives the best healthcare. He then finds that “detaining the accused would be tantamount to pulling back the treatment the young man is receiving,” especially because the court is unaware of any other way, he could receive his treatment.

It is this reasoning that informs what the CM decides the bail terms and conditions to be. The ten million to be given as cash bail, will be used to cater to the accused’s medical needs. The rest of it is to remain deposited in court until determination of the case. Furthermore, the ten million is to be paid in four equal 2.5 million-shilling instalments for the next four months.

In any other bail ruling, the consideration of a victim’s medical bills would constitute the judge’s obiter dictum. It would be good for them to consider, really helpful, but not in the least bit relevant for the determination of the application. There is no law tying an accused to the payment of their alleged victim’s medical bills and hence necessitating their release on bail terms. While thoughtful, it is not founded in the law.

In response, social media went crazy. It was awash with questions regarding these bail terms following the ruling. Some considered them illegitimate while others speculated as to the impartiality of the CM in the case. The Judiciary seemed bothered by the conversation and tweeted out the ruling in order to quash what it characterised as misreporting in sections of the media. Unfortunately, the Judiciary is not bothered enough, and this is why.

The legitimacy of courts

Ngugi wa Thiong’o’s protagonist, Matigari ma Njiruungi, coming from the forest following the war against the colonialists, finds the new world unjust and unbearable. He then rhetorically asks, “since justice is mightier than force, where does its force come from?”

That question is perhaps one of the most jurisprudential questions in the history of fictional literature. The answer, in very simple terms is “Legitimacy”. Coercion cannot always ensure obedience or compliance. It is an unsustainable and expensive tool. Legitimacy, defined simply as the right and acceptance of an authority, is far more effective at engendering compliance. It is whence justice gets its force from.

Courts, devoid of any coercive power except that in other arms of government, rely heavily on legitimacy to inspire compliance. Legitimacy expressed by the people is known as public legitimacy and it is an important component under the wide umbrella of judicial legitimacy.

Tom.R. Tyler and Justin Sevier explain that legitimacy as a whole is tethered to the public’s perception of the court’s delivery of justice. Popular legitimacy is cultivated through the public’s views about the use of fair procedures linked to the attainment of justice. They found that people use information about the fairness of court procedures to estimate the likelihood that the courts have determined the truth and punished justly.

They went on to argue that people value the use of fair procedures because those procedures, in their impartiality, reinforce people’s identification with legal institutions and support feelings of inclusion in society.

Unrecognisable bail terms are a break in tradition. They are not identifiable from the set of fair procedures the public acknowledges as legitimate and the result was that the public automatically excluded itself from the judicial institution. What follows is diminishing public legitimacy which threatens the trust people have in the judiciary and their willingness to subject themselves to it.

This is the reason why the loss of public confidence expressed in those banners on Thika Road is worrying. Regardless of what we think the problem is: corruption, bias, or a lack of judicial independence, the idea that a court is not adhering to set out procedures and principles in the law speaks to waning public legitimacy. This corrosion of public legitimacy threatens the foundations of our democracy and the rule of law.

The Rule of Law and Legitimacy of Courts

One of the components evaluated under the World Justice Project’s Rule of Law index is the efficacy of a country’s criminal justice. Kenya, ranked overall at 101/126 with a score of 0.45/1.00, is performing dismally. The elements analysed to estimate the efficacy of the criminal justice system rely on how people perceive the system. In essence, the criminal justice score, is a score on the criminal justice system’s public legitimacy.

The criminal justice system scores low on most elements and in particular, on perceived corruption (0.31) and on perceived discrimination (0.34). This scoring impacts the overall score in the rule of law index. The reason is because the rule of law depends on the belief in legality and requires the public’s readiness to conform with rules which are formally correct and have been imposed by accepted procedures. Without this, the system disintegrates and the rule of law collapses.

The threat of dissipating public trust

The banners and the sentiments brewing concerning the judiciary are not to be dismissed offhandedly. They are symptomatic of a festering public distrust in the system. They are a public reminder of what ails our rule of law system today. The claim made above is that the judiciary might have been corrupted in deciding the ruling.

Source: The WJP Rule of Law Index

While our Judiciary is perceived to be the least corrupt arm of government as seen in the chart above, the threat of dissipating public trust must be dealt with seriously and urgently. It is urgent for the Judiciary to reconsider its own communication strategy and realise that justice must be done and seen to be done.

Ultimately, it is the public’s testimony to justice being done that gives the law its much needed, non-coercive power and emboldens judicial transformation.

This article is part of a long series of articles on the rule of law in the context of politics and ethics. The views expressed here are personal and do not represent institutional views. The series is researched and co-authored by:

• Karim Anjarwalla, Managing Partner of ALN Anjarwalla & Khanna, Advocates
• Wandia Musyimi, Research Associate at ALN Anjarwalla & Khanna, Advocates
• Kasyoka Mutunga, Research Associate at ALN Anjarwalla & Khanna, Advocates
• Prof Luis Franceschi, Senior Director, Governance & Peace, The Commonwealth, London