Can anti-graft court be reopened mid-Covid?

Last month, the Judiciary announced that it was scaling up its services after locking down the courts since March, when Covid-19 hit Kenya.

However, most of these corruption cases have over 20 accused persons, and having all of them in court, including other users, might be problematic at a time of social distancing.

Lawyer Danstan Omari, who is in almost all these high-profile corruption cases, says the practicability of taking on the corruption cases is dead unless they are taken to Kasarani Stadium or Uhuru Park.

Omari says they had taken dates for some of these case before the coronavirus came into the country, but now it seems they might have to wait for a vaccine first.

For instance, in MP James Gakuya’s corruption case, they went before chief magistrate Elizabeth Juma but could not proceed due to the challenges of Covid-19.

“This is because the accused are nine, the advocates are 13, and then we have the state counsels who are four, we have the court clerks, magistrates and orderlies, who are police officers manning security,” Omari says.

They were given the biggest tent available at Milimani under the social distancing rules, which could only accommodate 32 but they were around 52.

Omari says some of the others stakeholders who must be in court during this cases include witnesses, prosecution team, the media and also in some instances the accused’s family.

“So because of that, we agreed that some people in court, including the accused and advocates who are above 58 years old, are vulnerable, and special arrangements must be put in place to make that the court is constituted fully before we proceed,” he said.

Omaris says there are other cases, for example, the KPLC case, where he is also a lawyer, where there are more than 17 accused people. When you multiply that with all the other stakeholders who must be inside court, it needs a space that accommodate more than 100 people.

He also referred to Sirisia MP John Waluke’s case, where he was mitigating. He said it was more of a political rally.

“The police failed to contain the crowds and that case was done in the most recently renovated corona-friendly court at the former customs office, and it failed the test,” Omari said.

Omari said another challenge is most witnesses and accused persons are spread across the country and they have to get letters to be able to pass the roadblocks to come to court.

“When as advocates we are defending this person who has come from Busia or Mombasa, how safe are we? That contact is another nightmare to us,” Omari said.

Omari says the Judiciary should put in place ventilators to help them when they are cross-examining witnesses to keep the heat and sweat away because cross-examination is always heated.

He says they need ventilators or air conditioning because in an anti-corruption matters, the accused person’s life hangs on how vigorously the advocate will cross-examine.

Omari has raised concerns about the use of hard copy exhibits and documents in court in this pandemic as it may be a way to spread the virus.

He says the documentation and volume of papers being carried to court for the cases are also a risk because according to some expert’s, paper transmits the virus.

“We deal with hard papers in cross-examination and it’s not virtual, and sometimes there are volumes of documents that are produced to court, so the court and everyone in that court might be exposed,” he says.

He says if funded by Parliament, the Judiciary should give every user walking into court their own sanitizer, whether an advocate or not, and plenty of water to wash their hands.

Omari says if funded, it’s the responsibility of the Judiciary to get more casual workers who will continuously sanitise the benches and tables every time the court is going on.

He says the microphones in the anti-corruption courts should also be added from one per court to at least 30 so advocates don’t share them.