ANTI-TERROR WAR: WHY WE MUST COOPERATE

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Chief Justice Willy Mutunga

I wish to thank judicial officers for the work that you continue to do under very risky and difficult circumstances. I also wish to thank our security agencies for the arduous task of trying to keep this country safe, and doing so within the context of the law. This is never easy and we must not take it for granted.

(Counter-terrorism law and procedures in the context of the Constitution and international human rights) is an important dialogue, and one which tests Kenya’s new constitutional order in a very fundamental but encouraging way. It is dialectics of this nature that nurture democratic culture.

This is why I have always taken the view that the Judiciary must interface with the rest of society in an environment where free exchange of ideas can occur without compromising the judicial and decisional independence. The Judiciary has, over the last two years, had dialogues with other sectors before, including the Bar, civil society, universities, business, among others as part of our institutional engagement with important issues of the day that make us discharge our constitutional mandate better.

Therefore the discussion with the security agencies is the next in the series. The Judiciary takes the security of this nation and safety of its citizens seriously enough to hold these principled dialogues in spite of skepticism and opposition in some quarters.

We have always taken the view that when it comes to issues of national interest, the three organs of government must work together; not to undermine and conspire against the Constitution, but to give its intents, purpose and objectives the necessary effect. In this task, public interest becomes the overriding principle.

The search for balance between security and rights is usually a difficult one, even in developed democracies but it is finding that balance that stabilises and progresses societies.

The debate between rights and security, and also the extent and nature of judicial intervention or judicial oversight on security and intelligence work, is not new or peculiar to Kenya. It is global and is very old. We must therefore wade into it with that sense of perspective and history.

The Judiciary finds itself in the difficult position where it has to remain true to its constitutional mission of validating rights, while at the same time insure itself against populist public anger when it does its work. I am sure that the judicial officers and the security officers in the country will find innovative, imaginative but constitutional and legal means to strike this balance. Both judicial officers and security officers swore to protect and defend the Constitution it’s occasional ‘inconveniences’ notwithstanding.

For us to make any progress there has to be cooperation. Security agencies must share with the Judiciary leadership strategic intelligence information that can aid policy and administrative action. It must assist us in exposing and breaking corruption cartels even if they reach judicial officers. The complex interplay of terrorism, drug trafficking, poaching, human trafficking must be deconstructed and decommissioned. Judicial officers need to appreciate and understand these dynamics.

This would require that investigation and prosecution conduct a thorough and comprehensive job and present the facts and evidence before judicial officers. Judicial officers will not grant bail or convict on the basis of emotions, but rather on the basis of a rigorous presentation of evidence and facts. Article 49 of the Constitution does not use the word ‘compelling’ for ornamental purposes. It could have stopped at the ‘reasons’.

So I hope that the prosecution service understands that they have to do much more to move the court to grant bail or bond. Incomplete investigations, lazy approaches to prosecution only lead to judicial determinations which will end up frustrating everybody and the public. I have set up a bail and bond committee in the Judiciary to draw bail and bond guidelines.

As we engage in this debate, we must appreciate the reason why the framers of the Constitution were this cautious. Our history was one of abuse of the bail and bond regime and even further they were trying to avoid a situation where ‘terrorism’, ‘public order’ was given such a ridiculously elastic definition in order to punish legitimate political dissent.

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