KIRAITHE: Constitutional independence must serve citizen aspirations - Daily Nation

Constitutional independence must serve citizen aspirations

Monday December 3 2018

Mwai Kibaki lifts Kenya's constitution

Former President Mwai Kibaki lifts Kenya's constitution soon after promulgating it at Uhuru Park in Nairobi on August 27, 2010. PHOTO | TONY KARUMBA | AFP 

By ERIC KIRAITHE
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Whenever I have had an opportunity to discuss his vision for the Directorate of Criminal Investigations (DCI), one thing stands out for director George Kinoti: Not once has he mentioned the word independence. That notwithstanding, I have not met anybody within or without, who doubts the DCI’s professional independence.

In the past, whenever a case involved theft of huge sums of money, a big shot or both big money and big shots, investigating, prosecuting and judicial agents displayed such paralysis that people lost hope. You would be lucky to meet anybody who knows what happened with such public heists as Goldenberg.

It is understandable that after the 2010 Constitution created new big shots in the name of governors and independent offices, these new big shots have not betrayed their expectation that one of the perks they expected to enjoy was immunity from the law, and especially, the right to facilitate and partake of the proceeds of corruption without being subjected to the shame and rigor of a criminal justice process.

ENDLESS INJUNCTIONS

Of course, the cabal of lawyers who ensured their share of the loot through endless injunctions and legal technicalities is still intact, ready for the game where the public always loses on technical grounds.

The lucrative game would have gone on had the Executive not suddenly changed tune and made substantive reforms to meet the expectations of Kenyans by moving firmly to prosecute corruption regardless of who or how much is involved.

It has come a time when the narrative of bringing criminals to justice by jailing chicken thieves as felons flaunt obscene opulence, must stop.

DISCOMFORT

Of course, this new mood has caused some discomfort. Whereas this was not unexpected among the political class, the murmurs of discomfort from justice system are a matter of serious concern.

The gravity of the matter has been exposed by the case where our justice system prevaricated extradition of suspected drug traffickers until the Executive stepped in.

The fellows were taken for trial in the USA and instead of waging a court battle they (rather speedily) opted for a plea of guilty.

This is not a small indictment of the way judicial officers and those responsible for supervising them interpret the sacred duty bestowed on their shoulders when the Constitution provided for independence of the Judiciary.

LOOT PUBLIC FUNDS

Societies do not give governance institutions constitutional independence so that it becomes an end in itself.

When treated as an end in itself, it works against the citizen because it emphasizes the stature, profile and capacity of the practitioners (especially those in authority) to loot public funds.

You just need to look at our MPs and listen to stories of court buildings costing Sh400 million in Turkana as citizens starve, to understand this assertion.

To remain legitimate, independence must be exercised to protect citizens from big thieves, build their resilience to withstand conflict and resist those who survive on creating controversies, including professional interest groups such as lawyers who can easily capture citizen interest for their own survival.

CONSTITUTIONAL INDEPENDENCE

For the Judiciary, constitutional independence was meant to free the courts from political and other forms of manipulation.

It was never meant to free the courts from the people’s legitimate aspirations. During the constitution making; the impunity of the big thieves in schemes such as Goldenberg and Anglo Leasing were big motivators.

Kenyans want corruption killed, in a brutal, swift and conclusive manner. They want this monster viciously hunted wherever its is without exception, ceremony or excuses. They want their children protected from narcotic drugs, terrorism and other crimes.

The talk of “we have our share of rotten eggs” is simply disparaging.

Mr Kiraithe is the Government Spokesman

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