The dramatic Friday arrest and weekend detention of JSC Commissioner and Senior Counsel Professor Tom Ojienda highlights the plight of all Kenyans in the hands of the DCI and the DPP, in the asserted war on graft. Ojienda’s arrest midstream an electioneering process of LSK male member representative to JSC, unwarranted protestation of his release by the High Court on Monday and Peter Wanyama pronouncement that he will not testify against him, contrary to proclamations by the DPP that Wanyama would, together with Appeal Court Judge James Otieno Odeck be a prosecution witness, depicts an overzealous prosecutor on a perilous warpath against the rule of law.
These events call for urgent need to deconstruct the myth by the DPP, that corruption and crime is being battled through arrests, illegal detentions and searches, denial of bail after arrest and on arraignment of suspects before Court. The DPP’s accusation that the High Court is obstructing the graft fight by issuance of conservatory orders and direction to the Chief Justice to intervene also, compels response. The rebuttal is essential to avert growing public misinformation on the functions of the criminal justice system and the constitutional supervisory role of the High Court over the DPP’s exercise of his powers.
The criminal justice system is designed to punish for offenses set out in the Penal Code and other Statutes. The DPP, who is an independent constitution office holder, is obligated to act without direction or control from anyone, in the initiation and conduct of prosecution. Unfortunately, the criminal justice system is often under the control of the Executive, despite the guaranteed independence of the office of DPP. Constitutional safeguards for that independence are being eroded fast, in an attempt by the current holder of the office to satisfy the Executive, explain to and seek the public’s acceptance of his actions.
On the other hand, the civil justice system is administered by the Civil and Commercial Divisions of the Chief Magistrate’s Court and the High Court, the Labour and Industrial Relations Court and the Environment and Land Court. The system remedies and compensates civil wrongs. The enforcement of fundament human rights and freedoms set out in the Bill of Rights as well as judicial review of administrative action is the function of the Constitutional and Judicial Review Divisions of the High Court. It is here that excesses of Government are checked, for the benefit of individuals and the public. Matters that are within the purview of these Courts should never be criminalized.
Kenya’s criminal justice is replete with instances of State abuse of prosecutorial powers, to settle political scores or advance other interests, by criminalizing disputes that are either civil or do not disclose a valid offence. Examples include the cases of Stanley Muga Githunguri and Jared Kangwana. In both cases, the High Court ruled that one need not defend a malicious prosecution but should stop it in the High Court.
It is an Advocate’s duty to defend a criminal prosecution before the Chief Magistrate’s Court, only where the charge has factual and legal foundation. If the charge relates to an otherwise civil claim, is contrived for an ulterior purpose and is malicious, it is prudent to challenge it the High Court. It is a duty discharged to all Kenyans, irrespective of their status and rank in the society. The DPP has sought to prosecute Ojienda on fees paid to him by a client; an otherwise civil matter and when there is no dispute on the same, or a complaint by the client. That is abuse of the criminal justice system. Ojienda’s case should not be treated or perceived differently from those of Grace Sorora, Walter Menya, Seth Odongo (Dikembe), Miguna Miguna, James Wanjigi, Maina Wanjigi, DCJ Philomena Mwilu amongst others. The DPP acted overzealously, roguish and was stopped on his tracks by the Courts.
Judges should not be fearful of enforcing the Constitution, on the threat of being reported to the Chief Justice. Even during the dark error in Kenya, Judges did not shy away from halting malicious prosecutions. In Stanley Munga Githunguri v Republic  eKLR the Court expressed itself thus:
We also speak knowing that it is our duty to ask ourselves what is the use of having a Constitution if it is not honoured and respected by the people. The people will lose faith in the Constitution if it fails to give effective protection to their fundamental rights.
The Court of Appeal was emphatic in Christopher Ndarathi Murungaru v Kenya Anti-Corruption Commission & another  eKLR that:
A dictatorship, on the other hand, might be quite efficient and less messy. In a dictatorship, we could simply round up all those persons we suspect to be involved in corruption and economic crimes and simply lock them up without much ado. That is not the path Kenya has taken.
Advocates’ overwhelming support for Ojienda has been received by a section of the public, at the instigation the DPP, as a common stand with corruption. The public is yelling in ignorant anger, as an earlier English crowd depicted in William Shakespeare’s Henry VI, Part 2, Act IV, Scene 2, “The first thing we do, let’s kill all the lawyers”. That is wrong. Is the DPP not also, a Lawyer the public may kill in the lynch? In the war on crime and corruption which we support, let us guard against an overzealous DPP: eager to detain without trial; keen on charging before completion of investigations; determined to coerce and threaten Courts to deny bail or conservatory orders; and who is vocal on press statements but taciturn in Court. Let the rule of law prevail always; least man falls, the lawyer falling first.
Nelson Andayi Havi, Advocate of the High Court of Kenya, 4th January, 2019.