By Mathew Lusweti

Prof. Makau Mutua: “Legal formalism is a pagan’s sword against justice. The judiciary must uphold constitutional due process protections of corruption suspects, but judges must NOT allow legal procedure to be used as the last refuge of the scoundrel to kill war on graft.”

Donald B. Kipkorir: “In Our Constitution, Sovereign Power, Public Good and Public Interest triumphs over all. Fighting and Ending Corruption is sovereign demand of the people of Kenya and in its public good and Interest. All Citizens and Institutions must be on same side. Rights of Suspects are subordinate.”

Mohammed Hersi: “It is high time we seriously considered foreign judges to handle high octane corruption cases after all we have had a foreign CJ in the past. We have foreign Pilots, Doctors so we can now turn to foreign judges to give us that impartial position.”

These are a sample of the reactions by Kenyans on social media (twitter) following the granting of an interim order by Justice Chacha Mwita barring the prosecution and (unprecedented) orders barring the investigation of Senior Counsel Prof. Tom Ojienda with respect to alleged payment for fraudulent claims of rendering of non-existent legal services to Mumias Sugar Company.

On 28th December 2018, police officers attached to the Directorate of Criminal Investigation arrested Prof. Ojienda regarding investigations into financial misappropriation and fraudulent dealings at Mumias Sugar Company. This followed an independent reviewed by the Director of Public Prosecutions (DPP) of the inquiry file relating to allegations of use of fake court proceedings, numbers, and parties spread across the country in different courts that were used obtain monies, as legal fees, from Mumias Sugar Company. The DPP recommended the prosecution of Prof. Tom Ojienda (a member of the JSC), Peter Kebati (former Finance Director of Mumias Sugar Company), and Emily Otieno (former Company Secretary of Mumias Sugar Company) with charges relating to obtaining money by false pretenses, uttering false documents, abuse of office, and conspiracy to defraud.

However, on 31st December 2018, Justice Chacha Mwita granted orders prohibiting the DCI and the DPP from investigating and prosecuting Prof. Ojienda with respect to the Mumias Sugar saga. This order has seen most members of the public rally behind President Uhuru Kenyatta, the Hon. Raila Odinga, the DPP, and the head of the DCI in their accusation of the judiciary as the weakest link in efforts to tame rampant corruption in Kenya. Kenyans, expressed their rage on social media, accusing the judiciary (and particularly) Justice Chacha Mwita of offering the courts as a hiding ground for those responsible for the collapse of Mumias Sugar Company and the loss of livelihood for hundreds of farmers.

The Director of Public Prosecutions, in a press statement, lamented that the High Court has granted Prof. Ojienda a whopping four different court orders (with respect to four different corruption allegations) barring his prosecution. The cumulative effect of these orders, granted in four different cases, is to immunize Prof. Ojienda from the criminal justice system. This clearly goes against the principles of equality before the law.

It is trite laws that courts should not restrain the functioning of the criminal justice system except in the clearest and glaring of circumstances of violation of fundamental rights of individuals. This was the stance of Mumbi Ngugi, J in Kipoki Oreu Tasur vs. Inspector General of Police & 5 Ors (2014) eKLR wherein she stated that: “The criminal justice system is a critical pillar of our society. It is underpinned by the Constitution, and its proper functioning is at the core of the rule of law and administration of justice. It is imperative, in order to strengthen the rule of law and good order in society, that it be allowed to function as it should, with no interference from any quarter, or restraint from the superior Courts, except in the clearest of circumstances in which violation of the fundamental rights of individuals facing trial is demonstrated…”

It is for this reason that it was stated by the Court of Appeal in Meixner & Another vs. Attorney General [2005] 2 KLR that judicial review courts should hesitate to usurp the function of trial courts. It was held thus: “It is the trial court which is best equipped to deal with the quality and sufficiency of the evidence gathered to support the charge. It would be a subversion of the law regulating criminal trials if the judicial review court was to usurp the function of a trial court…”

In the case of Republic v Attorney General & 4 others Ex-Parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014] eKLR it was held: “Our criminal process entails safeguards which are meant to ensure that an accused person is afforded a fair trial and the trial courts are better placed to consider the evidence and decide whether or not to place an accused on their defence and even after placing the accused on their defence, the Court may well proceed to acquit the accused.  Our criminal process also provides for a process of an appeal where the accused is aggrieved by the decision in question.  Apart from that there is also an avenue for compensation by way of a claim for malicious prosecution.  In other words unless the applicants demonstrate that the circumstances of the impugned process render it impossible for the applicant to have a fair trial, the High Court ought not to interfere with the trial simply on the basis that the applicant’s chances of being acquittal are high.  In other words a judicial review court ought not to transform itself into a trial court and examine minutely whether or not the prosecution is merited.”

As was aptly put in Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR: “the police have a duty to investigate on any complaint once a complaint is made. Indeed the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene”.

 It is therefore clear that the discretion given to the police to investigate and the DPP to prosecute criminal offences is not to be lightly interfered with.

Indeed the need for judicial deference to the DPP and the DCI is a function of the doctrine of separation of powers. Justice Njoki Ndung’u of the Supreme Court has underscored this point thus in RAILA AMOLO ODINGA & ANOTHER vs. INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 2 OTHERS (Presidential Petition No. 1 of 2017): “[249] Just as Parliament is expected to operate within its constitutional powers as an arm of government so must the Judiciary. The system of checks and balances that prevents autocracy, restrains institutional excesses and prevents abuse of power apply equally to the Executive, the Legislature and the Judiciary. No one arm of government is infallible and all are equally vulnerable to the dangers of acting ultra vires the Constitution. Whereas, the Executive and the Legislature are regularly tempered and safeguarded through the process of regular direct elections by the people, the discipline of an appointed and unelected Judicial arm of Government is largely self-regulatory. The parameters of encroachment on the powers of other arms of government must be therefore clearly delineated, limits acknowledged and restraint fully exercised. It is only through practice of such cautionary measures that the remotest possibility of judicial tyranny can be avoided.”

In the effort to bar his prosecution, Tom Ojienda and his supporters led by Advocate Nelson Havi have mounted a vicious campaign on social media aimed framing the accusations facing Ojienda as founded on the issue of “the amount of legal fees paid to an advocate by a client”. Nothing could be further from the truth. The charges facing Prof. Ojienda are relating to the fabricating of non-existent court cases and getting paid legal fees for non-existent work. There is also a charge related to being paid twice for a legal audit that was done and paid for by Mumias Sugar Company as per the letter of instruction. It turns out that Prof. Ojienda later claimed for a second payment for this same legal audit that had been paid for earlier thus double payment of legal fees for the same work.

In any case the learned Justice Isaac Lenaola had in Tom Ojienda T/a Tom Ojienda & Associates Advocates v Ethics And Anti-Corruption Commission & 5 Others [2016] EKLR held that criminal offences including questions of corruption committed by advocates were not any different from those committed by laymen in law. The regime of the statutory disciplinary process for advocates was limited to professional misconduct and not criminal conduct. To say otherwise would have given advocates a special place in the criminal justice system and however attractive such a proposition could be to advocates, it was fallacious and against the public interest and the need to apprehend criminals, whatever their profession. In any event, an advocate could suffer both a professional sanction and simultaneously suffer a criminal sanction.

Moreover the court (Justice Chacha Mwita) in the Tom Ojienda saga failed to take into account the fact that the desire to improve Kenyan governance set up that was associated with abuse of public office and corruption informed the entrenchment of a chapter on leadership and integrity in the 2010 Constitution of Kenya. This desire permeates the entire framework of the Constitution and is evident in the inclusion of the values and principles of good governance, integrity, transparency and accountability as founding values of the new republic as provided in article 10 of the Constitution. State officers are expected to exercise authority and to conduct themselves in accordance with the principles of leadership and integrity that include: personal integrity, competence, objectivity, impartiality, accountability, selflessness among others. These laudable aspirations cannot be attained when the police are unjustifiably barred from investigating and the DPP barred from prosecuting corruption related allegations.

Although the legitimacy of our system of government depends on the people’s consent through elections, the judiciary is the one institution within the constitutional system that does not depend on direct popular consent. Rather the courts derive their legitimacy on the competence by judicial officers i.e. on the special contribution that the institution of the judiciary makes to the quality of the social life of the Kenyan people. However, the judiciary by posing as the only remaining stumbling block to holding the high and mighty accountable, by issuing what are in effect “unjustified court injunctions”, risks losing any relevance in making a positive impact to the quality of social life in Kenya. These concerns are captured by Paul Mwangi in his withering critique of the judiciary published in the Sunday Nation of 6th January 2019 thus: “Judicial officers do not appreciate the grave concern of Kenyans that they are totally alienated from the rest of the country in the aspiration to slay this dragon called corruption…..The judges and magistrates cannot afford to have the same attitude towards the challenges of this society as did the post-independent expatriate judges who notoriously would not pay any regard to the social and political challenges of the newly independent nation. When we demand that the Judiciary must play its role in the fight against corruption, we mean that it must, from where it sits, become an active participant in the fight.”

The increased calls, evident on social and mainstream media, coming from across the political divide for a third purge of the judiciary (after the Ringera led radical surgery, and the judicial vetting processes), and the call for hiring of foreign judges to deal with corruption matters leads to a conclusion that Kenyans have lost faith in the ability or willingness of the current crop of Kenyan judges and magistrates to play any useful role in bringing the “lords of corruption” to justice.

Mathew Lusweti is a legal scholar and researcher.