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To raise confidence in courts, give Judiciary full autonomy

Friday December 13 2019

Article 146 of the Building Bridges Initiative report addresses the need to increase public confidence in the Judiciary.

One of the recommendations it makes on how to achieve that is by creating positions of special magistrates and judges to deal with the most grave cases like drug trafficking, corruption, terrorism, and other serious criminal offences.

Security for the foregoing magistrates and judges, according to the task force, should be provided by the State, as is the case presently.

The Constitution envisions a state that is responsible enough and respects rule of law.

A State that is anchored on constitutionalism, not the Kenya we're currently living in.

This one, or rather the people who run it, do not regard the law nor people’s rights. Which is why we need to relook at this specific article.

INTRUSIVE RELATIONSHIP

First and foremost, some of these crimes, as the report correctly describes them, are sanctioned, sponsored or preceded over by the political elites who occupy positions of power.

They use their legal authority to perpetrate them. They can influence court verdicts in more ways than one.

When the accused is the one to provide security for the judge or has unchecked capacity to influence the process of assigning and recalling security details of the said persons, we don't expect justice to be dispensed.

Kenya has an almost unparalleled history of an intrusive relationship between the State and the courts.

An easy example is during the Moi era when the law meant what the President and his blokes thought it meant.

You remember the incident of October 25, 2017 when a bodyguard of the deputy chief justice Philomena Mwilu was shot in Nairobi shortly before a petition that sort to stop the repeat elections was heard?

HEGEMONY

This incident was not a coincidence, there is every reason to believe so. It was, so it seems, a well-orchestrated ploy to intimidate Judiciary as a whole.

Only a few technicalities were required to deny the court requisite quorum. It couldn’t, therefore, determine whether the elections, scheduled for the following day, were legitimate or not.

We ended up with a ritual in the name of an election - a heavily militarised coronation exercise that served to throw sand in the gears of electoral justice than to secure negative peace that we desperately needed. The rest is history.

In short, merchants of impunity can't allow the course of justice to prevail if it stands to threaten their illegitimate hegemony.

Instead, they will intimidate, bribe and malign judges and magistrates in an attempt to influence court verdicts.

To reliably protect judges from such mischief, the Judiciary ought to acquire full autonomy.

It ought to morph from being an appendage of State to an independent institution worth its salt.

That way, public confidence in the Judiciary is bound to grow. To assign our bureaucratic state the responsibility of providing security to magistrates and judges is an undeclared war on justice.

The Kenyan government, past and present, is known for its disposition for departure from the accepted principles of legality and constitutionalism.

POLICE SERVICE

An independent Judiciary fulfils its constitutional mandate in a manner that outlines its independence.

This can be achieved by making the police service an independent institution capable of executing its core functions.

A police force is different from a police service. The Constitution is clear on the establishment of a police service under Article 246.

Although we know that on the ground, what we have is a police force; a reprehensible enterprise comprising trigger-happy police officers who follow orders from "above" like the 10 commandments.

There is an urgent need to restore the police service to an independent, professional and incorruptible body if we're to build meaningful bridges.

Such an institution is the one to provide security to judges and magistrates without the State dipping its hand in the process.

The term State here, ladies and gentlemen, is limited to oligarchical elites who are the face of power.

We need to come up with special means of addressing serious crimes like corruption, drug trafficking and electoral fraud, which hold us back from achieving our potential as a country.

As we put our heads together on how to arrive there, we have to be careful not to end up with a weak corollary.

Gervas John is a journalism student at Multimedia University of Kenya and author of The Trouble with Kenya; [email protected]