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Guilty until proven innocent? Sounds right for all politicians

Sunday December 1 2019

I am arguing that legal paganism – the resort

I am arguing that legal paganism – the resort to formal legal processes and technicalities – is OK. PHOTO | FILE | NATION MEDIA GROUP 

MAKAU MUTUA
By MAKAU MUTUA
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A foundational principle of the rule of law in a democracy is that a suspect is presumed innocent until proven guilty in an independent, impartial, and competent court. The court’s proceedings must be public and governed by due process protections. The accused has a basic right to confront the accuser. A democracy wouldn’t exist without these cardinal rules.

DESPERATE TIMES

In Kenya, however, every crook and scoundrel caught with his or her hands in the public purse loudly cautions us against a rush to judgement and proclaims innocence. Yet I think the court of public opinion – not of law – should presume every politician fingered for corruption guilty until proven innocent. Desperate times call for desperate measures. Let’s dig deeper.

Don’t get me wrong. I am not suggesting we abandon our Anglo-Saxon legal tradition and jurisprudence to which we cling so fiercely as though Syokimau – the Kamba prophetess – came down from the mountain with it. No, Ma’am, I am not saying we should think of questioning wisdom received from those who colonised us.

Let’s remember one thing; all knowledge is local and contextual, even if it’s deemed universal. You don’t start thinking as a universalist and then become a particularist. You do the reverse – start locally and maybe, just maybe, go global.

INTERROGATE

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Social truths always begin in some home neighbourhood. That’s why in Kenya we need to interrogate the principle of the presumption of innocence for politicians.

Let’s leave it to the courts to presume politicians accused of graft innocent until their guilt is established beyond reasonable doubt. But we, the people, should have a different, locally grown standard. Think with me and don’t indict me for becoming illiberal overnight. I still believe in the rule of law and political democracy, even though, as Winston Churchill said, it’s the worst form of government except for all others.

But the Kenyan experience suggests that the public would be foolish to hold onto the totem of the presumption of innocence for politicians as though it were a canonical fiat. As far as I am concerned, every politician accused of corruption is guilty as charged. Let me elaborate.

FLASHY CLOTHES

We know as an empirical matter that corruption has infected the bone marrow of virtually every Kenyan. Let’s admit it, we have become a nation of corrupt men, women, and children. The first step to finding a solution is diagnosing the problem. In Kenya, brother steals from brother and sister steals from sister. We are a sick society. It wasn’t always like this, but in the 1970s a demon started to possess us. Public servants began looting the public till. They enriched themselves. They primitively accumulated wealth — land, property, cars, businesses. It was said that if you were poor it was because either you were stupid, or morally inferior. We started admiring thieving rich public servants and politicians.

Even worse, thieving politicians and public servants became our role models. We knew that the expensive cars they drove, the big houses they built, the flashy clothes and expensive jewellery they wore, and the “thriving” businesses they owned were neither manna from heaven nor from the sweat of their brow. We knew they had looted the state. But we admired them.

LEGAL FANTASY

It’s said, in low tones, that some of our politicians and obscenely wealthy compatriots are drug dealers. But we elect them anyway. I guess, as the philosopher said, a people get the government they deserve. We have normalised corruption and stealing. That’s why our children become corrupt and steal as soon as they can walk and talk.

If this is the society we live in, and we do, why would we presume a politician accused of corruption innocent until proven guilty? It seems logical, and normal to me, that we should do the exact opposite – presume every accused politician guilty until a court of law declares them innocent, or at least not liable for corruption.

The public doesn’t have to engage in the legal fantasy of presuming politicians accused of corruption innocent. We, the people, know better. Let lawyers defend the corrupt in court. That’s their professional obligation. They get paid the big bucks to carry water for the crooks. It shouldn’t be the public’s.

ELECTING THIEVES

I am not attacking the legal profession. On the contrary, I am arguing that legal paganism – the resort to formal legal processes and technicalities – is OK. But it shouldn’t detain the public’s sense of reality about the known knowns about Kenyan politicians. The lawyers can argue that there are unknown knowns and known unknowns about their clients. That’s fine. But we, the public, don’t have to wait for legal shenanigans meant to launder the corrupt.

I am making this argument as a last resort to the conscience of Kenyans to stop admiring thieves and letting them be the role models for our children. Let’s stop electing thieves. No mas.

Makau Mutua is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC. @makaumutua

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