By Eric Mukoya

Recent utterances and headlines on how the courts must deal with graft cases are disconcerting, primarily disparaging professional excellence while reeking of human vitriol that almost reduces operational space of an otherwise independent institution as espoused under Article 159 of the Constitution. The story on Saturday Nation dated 5th January 2019- “DPP misery: why graft fight is stuck in the ruts- an article by Paul Mwangi: On the same day, a story by Everlyne Kwamboka- “Eyes on the judiciary as corruption cases spark fierce debate” and the editorial entitled “It’s now time for the judiciary to expedite pending graft cases”, both appearing in the Saturday Standard.

My diatribe first picks out select lines in the referenced articles: “This year the Judiciary should make conscious efforts to reinvent itself and while observing all tenets of justice, deal with graft cases before it” … “but for judiciary this might be a defining moment for its anti-corruption division to change public perception on how the cases of are handled compared to previous years.” These comments highlight three important issues: first is whether as a country we have clear understanding on the role of courts, the procedures and processes involved in expensing matters before them: second, is whether, our constitution proffers the independence of “four” arms of government-Judiciary, Legislature, Executive and the Public: and third, is whether the newspapers and media houses have the moral responsibility to provide factual information besides sharing commentators’ opinions, on certain matters with high significance value.

The Judiciary is an independent institution and has two fundamental functions: Protecting and promoting the law, which includes interpreting and developing through precedence in cases before them. The other function is to adjudicate matters brought before it, guided by legal instruments and principle that emphasize access to justice for all, such as bail, bond administering plea, and evidence procedures. However, these functions are not necessarily a making of the court, because in law it must be moved by an “aggrieved party” on a particular matter. The court must listen with high levels of neutrality regarding the evidence presented to it in support of the position taken by the parties involved. The court must then dispense off the matters in accordance with the law, having reviewed the quality of evidence brought before it. At this point the court is innocent, not unless the procedures are highly obtuse and matters before them have undergone thorough investigations, and clarity of offense is undoubtful and meets the set standard of proof. This scenario demands that the Directorate of Criminal Investigations and the Office of the Director of Public Prosecutions work out their role to ensure that Judiciary gets water tight cases to dispense.

The attacks on the judiciary as currently experienced may have been the grounds upon which the United Nations under the Commission on Human Rights, in 1994 made an appointment for a special Rapporteur through resolution 1994/41 to monitor and work towards scaling down attacks on judges, lawyers and court officials. This resolution was an acknowledgement of the vulnerability of judicial staff and the absence of outright protection of judicial systems. Previous attacks on Deputy Chief Justice Philomena Mwilu and Justice Mwita attest.

One can understand why Kenyans are angry as regards graft. We must remember that corruption is an organized crime, and often the perpetrators invest in destruction of evidence including demobilizing witnesses. Second, perpetrators have upped sophistication and likely operate within legally recognized channels, which creates difficulty to detect the crime. Therefore, is it right for instance to claim that Justice Chacha Mwita’ orders jeopardized the fight against corruption. What does it amount to, regarding his order for stopping investigations on a person of interests by Police? At this point I wish to quote Cynthia Gray in her research titled, “The Line Between Legal Error and Judicial Misconduct: Balancing Judicial Independence and Accountability

Judges must be able to rule in accordance with the law which they believe applies to the case before them, free from extraneous considerations of punishment or reward. This is the central value of judicial independence. That value is threatened when a judge confronted with a choice of how to rule-and judges are confronted with scores of such choices every day-must ask not “which is the best choice under the law as I understand it”

The Incoherence between the three official arms of government, especially the blame game from those who make and execute the law predisposes Judiciary to the anger, dislike and disdain of the fourth arm-public. The media, therefore has responsibility to provide facts to ensure that the court is not crucified for standing on the side of law. If at all, there is a problem with the law, then legislators must take up the matter. In the eyes of the public, the court is Guilty for non-performance!

Eric Mukoya:

The Executive Director of Legal Resources Foundation Trust