The withdrawal of an attempted murder charge against Embakasi East MP Babu Owino, who was caught on camera shooting and injuring DJ Evolve at a nightclub in January last year, has elicited much controversy.
In allowing the dropping of the prosecution, principal magistrate Bernard Ochoi declared that the prosecution was “a matter where the court should encourage reconciliation as envisaged in the Constitution” but it is difficult to escape the stench of impunity.
On the face of it, it looks like the MP has essentially been allowed to buy his way out of a prosecution.
In his ruling, the judge implied the attempted murder charge was “personal in nature”, even calling Orina the complainant. He essentially held that because Owino and his victim were still friends and the former had agreed to foot the latter’s medical bills and to pay compensation, reported to include two houses, a vehicle and setting up a business, he was justified in letting him off.
“As a condition of withdrawal, the MP will purchase an apartment for the victim, which will resolve the issue of house rent, and continue paying the hospital bills of the victim who comes from a humble background”.
This is profoundly disturbing.
The judge seemed to treat the case as a private prosecution or a civil case. Yet in a criminal cases it is the state that brings charges on behalf of the society. They are not “personal” contests between the accused and the victim. Issues of compensation are properly the province of civil courts and conflating the debt to society and the compensation to individual victims is bound to lead to perverse outcomes.
The Constitution, while encouraging “alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms” is clear that such should not be used in a way that “is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality”. It is difficult to argue that this was not the case here.
The reconciliation and compensation argument employed to avoid prosecution of politicians is not new.
In 2013, while arguing against the prosecution of President Uhuru Kenyatta and his deputy, William Ruto, at the International Criminal Court for crimes against humanity in relation to the 2007-08 post-election violence, then permanent representative at the UN Macharia Kamau, suggested that the 650,000 people internally displaced by the violence in fact got a great deal.
Most were squatters before, he said, and they came out "way ahead" following resettlement by the state. Further, state officials argued that since the supposed warring communities had reconciled, as represented by the UhuRuto partnership, there no need for prosecutions.
Today the same arguments are routinely employed whenever wealthy Kenyans kill the poor. Owino is sadly far from being an exception. In 2017, Starehe MP Charles Njagua, who was convicted of killing two people through reckless driving was fined only KSh40,000 and barred from driving for a one year period. A press report on the case noted that “he now supports the families of the victims”.
The Kenyan justice system has always been skewed in favour of the rich and powerful. Set up as part of the apparatus of colonial control, the courts were less interested in dispensing justice for the natives than in ensuring impunity for the settlers. Similarly today, in the case of Owino, the courts have bent over backwards to minimize the inconvenience to him.
When he was first charged, he was given Sh10 million bail and then allowed to pay it in installments, an accommodation not afforded to the tens of thousands of poor Kenyans who languish in jail for inability to pay bail. In other cases it seems quite easy for the wealthy to avoid jail time when they kill the poor, just as the colonials did for killing locals.
Former CMC director Joel Kibe was acquitted of causing death by dangerous driving after he drove his car into a security barrier killing a security guard. This, despite footage of the aftermath of the accident showing a seemingly drunk Kibe callously admitting “Nimegonga barrier. Gari yangu imeumia, tumeumia sote”.
In another incident that caused uproar, pastor James Nganga was acquitted of charges of killing a woman by dangerous driving in 2015 in a case where three others had been implicated in an alleged attempt to cover up the crash and protect the preacher.
In both cases, the state has said it will appeal but the acquittals along with the Owino case demonstrate the grossly inconsistent and unequal ways in which the justice system treats Kenyans. The jails, it seems, are still meant for the natives, and not for their overlords.
