No way out for Bar and Bench without honest introspection

I wish to join all readers in expressing my condolences to the families that lost their loved ones during the heinous attack at 14 Riverside Drive. Those who died were killed for no other reason than the fact that they are Kenyan. They, therefore, are our martyrs. Let us remember them and those who have been similarly killed by terrorists on our soil as the “The Martyrs of our nationhood”.

I also wish to join those readers who believe that the security forces did a great job. Responding to terrorist attacks is an arduous and complex engagement for any country and we have had our challenges in the past. The conduct of our forces in responding to the incident at 14 Riverside Drive gives us hope and confidence that they are making every effort to adequately prepare for such unfortunate occurrences.

What seems to have happened is that there has been a lot of self-analysis among the national security organs and many lessons have been learnt from the past. The leaders of the national security organs clearly took our criticisms seriously. Rather than stubbornly defending their institutions, they went and traced the problem and many Kenyans are happy with the effort.

It is, therefore, paradoxical that when it comes to corruption, the common narrative is that our security forces are incompetent. Of all the investigations that the police conduct, it is the corruption ones that are always wanting. The phrase “lack of evidence” has become a common adjective given by the Judiciary to every failed corruption prosecution.

Personally, I have refused to accept that this is the true state of affairs. My hypothesis is that the narrative of the incompetence of investigations and prosecution of corruption cases is a deliberate strategy of the forces of impunity in order to create an open door through which they can safely walk away from accountability whenever caught in the net of the criminal justice system.

DISMISSING

This is not to say that the criminal justice system has got its act together on this front. But it cannot be that this is the only front on which they have been incapable of getting anything right. According to the Judiciary, there is no discernible improvement in the way corruption cases in Kenya are investigated and prosecuted.

There have been many changes in the criminal justice system but one recent discernible change is the zeal which the new Director of Public Prosecutions and the new Director of Criminal Investigation have brought into their work and the synergy that they have created.

With the appointment of Mr Twalib Abdallah Mbarak as the new Chief Executive Officer of the Ethics and Anti-Corruption Commission, many Kenyans are hanging on the hope that he will be a positive addition to the new drive to get rid of corruption in our society.

But when he swore in Mr Mbarak at the Supreme Court last Monday, the Chief Justice, rather than join the rest of us Kenyans in encouraging the new anti-corruption czar and wishing him well in his endeavour, found it more appropriate to repeat his defence of the Judiciary and reinforce the narrative that corruption cases are being thrown out because they are hopeless.

If the Chief Justice were to look back at the history of the institution he is now leading, he would be very careful before dismissing the accusations that are being levelled against it as the weak link in the fight against corruption.

INVESTIGATIONS

This is the only institution that Kenyans set aside for special attention when it came to the question of corruption in the new Constitution. Kenyans had lost all faith in the Judiciary. So much so that the new Constitution required that the sitting Chief Justice, whoever it was going to be, to vacate office within six months of its promulgation. It then required all judges and magistrates to be vetted to determine their suitability to hold judicial office in light of the new national values and principles.

That was only eight years ago. And it’s only been two years since The Judges and Magistrates Vetting Board submitted its final report to the President. We have not even begun the implementation of some critical recommendations made by the board to clean up the Judiciary. For instance, The Board in its final report recommended that there should be established an independent disciplinary tribunal for the Judiciary made up of members picked from outside the institution. They said this was to avoid a conflict of interest.

It’s thus not clear why the CJ is defending the Judiciary with such confidence. In the very least, it would have been impartial for the Chief Justice to sit with the heads of the investigation and prosecutorial agencies and ask them which cases they are relying on to blame the Judiciary for failing in the war against corruption. He should then set up an independent ethics and standards committee to look at how these cases were handled. There is a good probability that the DPP and the DCI may prove their accusations against some judicial officers.

In the same way the CJ will not condone the Judiciary being made a scape goat for hopeless investigations and prosecutions, he must be equally loathe not to have the EACC, DCI and the DPP made scapegoats for incompetence and corruption in the Judiciary.

FURTHERANCE

The Law Society of Kenya has taken a similar stand with the Chief Justice regarding the failure of the legal profession to join other Kenyans in fighting corruption. On the very same day the Chief Justice spoke, the Law Society of Kenya (LSK) through its secretary and Chief Executive Officer Mercy Wambua defended the profession and blamed some dishonest lawyers of tarnishing its name. She gave a few examples of what LSK was doing to help the fight against corruption.

Apart from saying that it was holding meetings with the EACC, DPP, DCI and the CJ, the LSK did not mention any definite initiative it had commenced to establish any practices, processes and procedures of law practice that were an enabler to criminal enterprises. To the very contrary, the LSK was fighting to entrench such enablers.

While it was issuing its statement, the LSK had opened a war front against the criminal justice system regarding the powers of the police to seek evidence from advocates on the commission of offences by their clients.

Let me first state from the outset that the entire legal profession is based on the cardinal principle of Advocate-Client privilege. A person’s right to legal representation would be total nonsense if the communication made by the person to the advocate in furtherance of that right could be used against him. One cannot get full legal advice unless they could talk to their advocate without inhibition.

Nevertheless, the privilege is not absolute. Firstly because lawyers are no angels and we are prone like every other citizen to become criminals. Secondly, lawyers are members of the society and have the same duty as everyone else to stop or report crimes. Exceptions have therefore had to be created in law to cover circumstances where Advocate-Client privilege could be used in the furtherance or cover up of a criminal enterprise.

These are the exceptions I would expect the Law Society to be engaging us in a discussion about. They are the ones that should be part of the ongoing talks between the EACC, DCI, DPP and the CJ which the LSK says are going on. They are not only currently relevant to the Kenyan legal profession in the light of the new war against corruption but also everywhere else in the world today.

DICTATORSHIP

In April last year, agents of the Federal Bureau of Investigation raided the New York offices and home of the personal lawyer of the President of the United States of America. The prosecutors were in possession of warrants issued by a federal judge authorising them to search for evidence of President Donald Trump’s collusion with Russia to interfere with the presidential election in which Trump was declared winner. Apart from being his personal lawyer, Michael Cohen was known to be Trump’s “Mr Fix-It”.

Clearly the LSK is on the wrong side of history this time. It would be more responsive to the current needs of our society if the LSK were engaging us in the discussion of how to stop the Advocate-Client privilege from being used as a tool by criminal enterprises to destroy the Kenyan society.

And as if to underscore how much the LSK has become alienated from the common mwananchi, it is also seeking to stop the arrest of advocates on Fridays. And also that Advocates should not be charged in court until they have first been subjected to their internal professional disciplinary mechanisms.

Even at the height of Kenya’s years of dictatorship the LSK has never sought for itself a preferential treatment different from that given to the rest of Kenyans. Indeed in many instances it is lawyers who have suffered the most in their fight to secure the rights of the general public. And they have always done so willingly and without a sense of entitlement. Lawyers have been beaten, jailed and detained without trial. And they have never sought till now to have a different set of rules for themselves.

All Kenyans are entitled to equal protection under the law. Every lawyer knows that. And we have not asked to be treated as being special than other Kenyans. The question then is, who is the LSK acting for on this one. If you ask me, I think it’s the cartels.