• Literally every arm of government faces strong criticism from the public and their counterparts. For the Judiciary, however, their counterparts handling corruption cases cannot openly or directly criticise them.
•That criticism may negatively impact the cases they are handling to the utter detriment of the interests of the public.
Image: OZONE
In 2017, after the Supreme Court nullified the presidential election, Kenya’s Judiciary asserted its independence in the face of political pressure. In the process, it won the hearts of not just Kenyans but people around the world.
There has never been a moment in our history when the Judiciary has enjoyed such incredible goodwill and favour from the public. It is disconcerting then that the same Judiciary is so prickly when the public that believes in them criticises its handling of corruption cases.
Literally every arm of government faces strong criticism from the public and their counterparts. For the Judiciary, however, their counterparts handling corruption cases — the Director of Public Prosecutions, the DCI,the Ethics Anti Corruption Commission, the Asset Recovery Agency and the KRA — cannot openly or directly criticise them.
That criticism may negatively impact the cases they are handling to the utter detriment of the interests of the public.
More importantly, it is a rather surprising attitude to expect to conduct corruption cases without being criticised, after all the DPP, DCI, EACC are all heavily and constantly criticised over the slow pace of cases and the low number of convictions.
Criticism will fall on everyone in this war, including President Uhuru Kenyatta, as these are matters of great public interest as they not only involve highly influential individuals, cartels that sabotage public service, but we also seek to recover vast sums of money and resources that have been embezzled.
“Courts adjudicate over matters brought before them and give verdicts based on the evidence presented to them. Is it then possible for the courts to convict, fine or lock up people presented before them on mere allegations? Your answer is as good as mine. Laid out court and case management procedures must be followed while at the same time, the rights of the accused must be respected. Courts must hear all witnesses in a case as the law provides that accused persons may call as many of them as they deem useful in their defence,” Connie Baraza, the communications officer at the Judiciary, says in an article arguing the Judiciary is not the weak link in the fight against corruption.
The Judiciary has so far demonstrated the firm upholding of the suspects' rights in graft cases, enshrined in the bill of rights. But when we consider statutory interpretation, we learn there are three main rules to interpret a statute; the literal, golden and mischief rule.
While applying the literal rule, the law is read word by word and without diverting from its true meaning. The golden rule states that if the literal rule produces an absurdity, then the court should look for another meaning of the words to avoid that absurd result. The main aim of the mischief rule is to determine the "mischief and defect" that the statute in question has set out to remedy, and what ruling would "suppress the mischief, and advance the remedy.
When it comes to the rights of the suspects, it's clear that the literal approach taken is that the rights of the suspects must be respected, and in many instances to the utter hindrance of the cases at hand.
The best example of a literal interpretation that resulted in an utter hindrance is in the case against former Nairobi Governor Evans Kidero, who faces a Sh213 million graft case. It's important to note that Kidero was the first governor to be charged with graft and this case managed to make it to trial only for the court to bar the main evidence — bank statements — to be admitted in court.
According to the Star report of September 17, 2019, Anti-Corruption Court magistrate Douglas Ogoti ruled that since the bank statements have not been formally admitted in court, the prosecution should not be allowed to use them to prove the case.
He said the documents were not supplied to the defence but somehow appeared in court. "The documents were neither disclosed to the DPP nor to the defence. They have also not been formally admitted as evidence and in order to ensure the accused's rights are protected, I hereby bar the prosecution from further referring to the said statements in this case," he said.
This ruling has had a devastating impact in the case. Lawyers James Orengo and Philip Nyachoti have stated that it did not deal with the consequences arising from the evidence adduced by other witnesses who made reference to the bank statements.
“What happens to evidence that is already on record where the prosecution has referred to the documents you have barred them from using. What of witnesses giving testimony arising from that document,” they posed.
In this instance, the court determined to uphold the rights of the accused above the rights of the majority. We have to ask why they lean so much towards the protection of the civil liberties of the accused and yet in so doing, they actually breach constitutional rights of the majority.
Even globally, there has been an acceptance in the shift in the balance between the rights of the individual and the rights of the majority, especially where lives are involved such as in regards to terrorism. A great place to start would be an intensive consideration of the different kinds of statutory interpretation regarding the rights of the accused. While we appreciate the breakdown by Baraza of actions taken by the Chief Justice to reform the Judiciary as regards the fight against graft, what we truly need to see is the progress and results from those actions taken.
And though she may argue that measuring the success of the Judiciary’s work in the fight against corruption via convictions would not be fair given the many circumstances she details, it really is the only measure the public have for the Judiciary - are people being convicted or not. Let us not forget that it is the judiciary that coined the term shoddy investigation, in direct criticism of the DPP and investigating officers, indicating that they aren’t working with their counterparts, in good faith.
By the time the Judiciary is being criticised, there is something amiss. With the level of trust and confidence from the public, and since there is a bias to see the good in the Judiciary, this criticism must be because the facts are glaring, as seen in the Kidero case.