Former Finance Cabinet Secretary Henry Rotich (centre) at a Milimani court in Nairobi on Thursday, December 14.
It is not every day that I agree with lawyer Ahmednassir Abdullahi but, for once I am inclined to believe he is on to something with his views on graft in the Judiciary. Our courts are enabling corruption in the country.
Many corruption cases involving senior public officials have been withdrawn from courts prematurely with lack of evidence being the standard reasoning.
The recent collapse of such cases that came hot on the heels of each other involved that of former Treasury Cabinet Secretary Henry Rotich and the ever-grating former governor of Nairobi Mike Sonko.
The withdrawal of corruption cases involving senior public officials is either some bizarre coincidence or the money looted is being divided three ways between the prosecution, the courts, and the offender. Ten percent of Sh500 million has got to be some hell of a sweetener.
Withdrawal of corruption cases does not still answer where the lost money has gone. If evidence points to public money having been stolen, then surely there must be someone culpable?
Corruption cases failing due to lack of evidence could mean the prosecution failed to do due diligence prior to bringing cases to court, or the Office of the Director of Public Prosecution and the courts are taking bribes.
Even the blind are capable of sifting through mountains of evidence in high level corruption cases that the able bodied are failing to see. For instance, we could start by auditing the lifestyles of most politicians who have had meteoric jump from ‘poor to wealthy’ since they won political seats. Even the most highly paid politician won’t be as rich as those we see around bloated on stolen public funds. Unless they have won a jackpot in a big lottery or able to mint money in River Road, most of our public servants are rich by theft. Fact!
The rate at which the Executive and Legislature are getting away with financial crime is a big concern. The Chief Justice should, therefore, have taken cognisance of this fact and avoided meeting them at any cost. The recent meeting between the Chief Justice and the President on the dispute around court orders that riled the Executive should never have taken place. Such meetings are bound to lead to conflict of interest.
The rule of law is not negotiable, and the Chief Justice should have been aware of that and declined the invitation to State House. The fact that most of the corrupt individuals who had their cases dropped are present and past members of the Executive and Legislature is enough to raise the issue of the Chief Justice being compromised.
Hence, politicians having their corruption cases withdrawn prematurely for lack of evidence is not as simple as there being no evidence but a canvassed illegal ruling by compromised magistrates and judges.
The other crucial issue that has emerged and justifies the claim that our justice system is compromised is the notion that the funding of it must be authorised by the head of the Executive, who is the President and not an independent entity.
Starving the Judiciary of funds by the Executive is very telling of a corrupt Executive and Legislature using public funds to frustrate the work of the Judiciary.
In this manner, the Judiciary is caught between a rock and a hard place of canvassed illegal rulings, blackmail and deliberate poor funding. The funding of the Judiciary now needs a rethink to save it from State capture.
The salvation of our courts and the rule of law is, therefore, firstly, in the hands of the Law Society of Kenya, who must make sure that they produce lawyers with integrity primed to serve honestly as magistrates and judges. The other salvation of our courts lies in the hands of the Judicial Service Commission. They need to put their act together and act quickly on the unsavoury rulings clearly being made by compromised magistrates and judges.
The courts are there to arbitrate but they are also meant to check the actions of the parties to a dispute. The prosecution should never be allowed to waste taxpayers’ money by bringing ‘lame’ cases to court time and again. Wasting the courts’ time is punishable in law, so why is the prosecution getting away with it? It is the role of the courts to protect public interest cases and finances, not corrupt individuals. The courts cannot blame everyone else for bungling corruption cases without holding a mirror to itself. It is failing and continues to fail the public by being soft on corruption and bending the law in favour of corruption suspects.
- Ms Guyo is a Legal Researcher [email protected]. @kdiguyo
