Blaming the Judiciary for Failure on War on Corruption Simplistic and Short-sighted

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Waikwa Wanyoike

Lately, there has been a barrage of statements, opinion articles and political outbursts which have termed the judiciary as the greatest impediment to the success on the war on corruption. These criticism are based on a compounding fallacies that start with assertions that the judiciary is not doing enough to ensure that those brought to court on accusation of corruption are found guilty.

Some have even argued that the continuing high drama arrests and prosecutions demonstrate that we now have a DPP and a Director of Criminal Investigations (DCI) who are fully committed to the fight against corruption. In their view then the failure to end corruption is fully attributable to the judiciary because it does not appreciate the extent to which this is a Kenyan problem and because it has failed to innovate domestic strategies to deal with corruption cases.

A much more complex problem

These arguments are not new and they seem to feed from a simplistic and tired narrative peddled by the executive that it is the judiciary that is failing Kenyans when it comes to fighting corruption. Let me explain.

First, the problem relating to the fight against corruption is complex. It is one that cannot be blamed entirely on one institution or a single arm of the state. Second, is it really true that the DCI and DPP are fully committed to fighting corruption or might they be two men on a high drama show whose decisions on which cases they investigate and prosecute and how they go about it are largely motivated by extraneous and extra-legal factors? Put another way – is the DCI and DPP undertaking the anti-corruption work in a non-selective, professional and sustainable manner?

Third, most critics who lay the blame solely on the judiciary are wrong because they fail to understand – or misrepresents – what the role of the judiciary is and how it should function in a constitutional democracy when adjudicating criminal matters.

The Judiciary needs to be more Hands-on

I do agree that some blame should go to the judiciary in our assessment of why we seem not to make progress on the war on corruption. True, the judiciary at times seem overenthusiastic to issue constitutional remedies and restraining orders on what may be undeserving cases. Additionally, it is also concerning that the laws tend to benefit the famous and the rich who can easily go to the High Court for constitutional remedies yet the majority of Kenyans who are prosecuted daily in magistrates courts never benefit from constitutional protection. But a qualification is necessary here, since it is Parliament which passed a law that takes away from the Magistrates jurisdiction to deal with constitutional complaints relating to criminal prosecutions. Regardless, the judiciary should not continue to be seen to foster what is a two-tier system where the rich and famous tend to access constitutional remedies relatively easily, especially in criminal matters. Even without the support of other organs of the state, judiciary has the remedial tools to stop a structural problem that promotes this skewed sense of justice.

Additionally the judiciary needs to be more hands on in controlling the pace of completion of cases. We still face daunting challenges of case backlog, including on trials relating to economic crimes. I find that Courts are too quick to let flimsy excuses by police, prosecutors and defence lawyers delay trials. Courts therefore bear the blame of failing to take charge to ensure that police, prosecutors and defence lawyers appreciate and conform to the discipline that is needed to enable cases to be concluded quickly. Unjustifiable delay have the potential to compromise evidence and witnesses and makes conviction, even in strong cases, more difficult to achieve. Our Judges and Magistrates need to be more authoritative at ensuring that parties bring the necessary discipline that is needed to move criminal cases faster.

Regardless, I believe that the greater problem with our criminal law and especially the fight against corruption lies with the police, the EACC and the DPP.

Ignoring Basic Constitutional Standards

When Kenya passed the 2010 Constitution, part of the requirement was to overhaul both our legal system and the warped entrenched attitude that the law and institutions existed to serve the political class. In the criminal law context, a number of things needed to change fundamentally. First, by ensuring that criminal law was not used as an arbitrary tool by police, prosecutors, the judiciary and in fact the entire state machinery to victimize or harass people. Hence, the constitution provided an elaborate bill of rights which included the right not to be arbitrarily detained or arrested and rights to fair trial. That is why Article 49 of the constitution requires that upon arrest, the police must inform an accused person promptly the reason for arrest.

The constitution detests the possibility where the police arrest a person then find reasons later to justify the arrest. Yet this is a common occurrence – the police will stop a person, start an interrogation then work backwards to find an offence to charge the person with. This is partly why the police more often than not do not inform an arrested person at the point of arrest why they are making the arrest. Too often, when the police choose to charge someone with an offence they will not have the evidence ready at the time the person first appears in court instead asking for time to complete investigations. True, in complex cases, the police can investigate even after an accused has been charged, but as a rule, even for such cases there should be enough evidence from the onset to justify the charges and prosecution.

There is also a capacity concern. In the greater part, our police lack the equipment, capacity, systematic approach and generally the relevant support that is needed to conduct thorough investigations. We continue to foster a policing approach that is premised on might not tact. We have largely failed to give back to our police force the self-esteem that the colonialist robbed from policing.

DPP Should be Professional and Independent

The Constitution has tasked the DPP with the mandate to ensure that the errors of the police, whether out of overzealousness to charge or those borne out of innocent human error, are corrected at an early opportunity. Before anyone can be prosecuted for an offence the DPP must satisfy himself there are good and evidence-based reasons to do so, including that the prosecution is in public interest.

As such, before the DPP undertakes prosecution he must review the evidence from the police and make a determination that there is a good chance that the accused will be convicted. In doing so, the DPP is required to use a much higher standard than the police use when deciding whether to arrest and charge. This is to ensure that no one is subjected to the stigmatizing criminal process in circumstances where there is no credible evidence to support the charge. The review by DPP also ensures that credible criminal cases are not compromised by poor or subjective police investigations. Unfortunately, too often, the DPP fails to undertake this review early enough – except perhaps in high profile cases – and even then the DPP seems erratic at discharging this role.

Worse in corruption cases, it now seems that the DPP and DCI have an unholy alliance, making the DPP too invested in the investigations in a subjective way. This blurs his ability to see the blind spots in the evidence and prosecution strategy and often making his office an active partner in whatever excesses the police are involved in. This approach seems to betray the possibility that the DPP is keen on implementing a political agenda rather than acting with professional fidelity.

Nothing illustrates the disregard of basic legal principles more than the now commonplace arrests on Fridays, whose motive seems to be to keep those arrested away from Court as long as possible as the DCI and DPP run roughshod over the weekend on all procedural entitlements of the arrested person effectively making the arrest a punishment in itself and not a process to facilitate prosecution.

Selective Prosecutions

Knowing the prevailing political environment in Kenya, one cannot totally ignore the claims that the DCI and DPP have created a pattern of selective prosecutions on corruption cases. Whatever the motivation for the prosecutions, there must be an avenue through which these cases are tested through sound evidence and other legal standards, and the Judiciary (through its constitutional mandate) offers this channel. This is the only way that the Judiciary can act as a buffer between politics and afford the equal protection of legal rights of persons. Any attempt (whatever the form) to water down cardinal principles of law will be a straight path to anarchy. 

The Role of the Judiciary

The constitution insists that the judiciary must be independent and impartial. Independent from the influence or excitement of the political state or the irrational or emotional agitations of the public. Impartial in how it assesses every case brought before it to ensure that disputes are not resolved on the basis of the exigencies of the day but on an objective evaluation of facts and the law. In doing so, the judiciary is expected to act independently and impartially and there is no place under the constitution for it to conspire with a party to facilitate a subjective outcome.

The requirement that the judiciary acts independently and impartially is key to make sure that those who wield instruments of power and coercion, such as the executive, DCI and the DPP use that power in accordance with the law. Where there has been significant violations of the constitution at the point of arrest, investigations, laying of charges or prosecutions – or where the prosecution are undertaken for illegitimate purposes – the Courts are right to intervene to ensure that the police and DPP respect rights regardless of the subject or the subject matter of prosecution.

Way Forward 

I agree that we need relevant and applicable norms that can help our society to move forward. An approach that appreciates the multi-faceted nature of the problem. However, this is not a task for the judiciary alone. A starting point should be the National Council on Administration of Justice (NCAJ), which brings together critical institutions of the state (the Judiciary, police, DPP, Office of the Attorney General, Kenya Law Reform Commission). It is in that forum that honest discussions on how to develop a fully functional and sustainable criminal justice sector should be held. It is there – and not statehouse – that a holistic review of what laws, rules, executive orders, attitudes that frustrate investigations and prosecution of critical criminal matters including corruption cases should be conducted.

In the end though, objective, professional, politically indifferent, methodical and sustained investigations and prosecutions as well as speedy and fair trials is what will assure results in the war on corruption and deter every Kenyan, regardless of their station in life, from the now so ubiquitous habit of stealing from the public.

Waikwa Wanyoike is a constitutional lawyer.