By Shadrack Muyesu
Many a report has blamed extra judicial killings on the failure of the Judiciary to expeditiously adjudicate on cases of perceived threats to national security. Actually, loss of faith in public institutions, such as the courts, has been cited as the main cause of extra judicial killings.
And the judiciary doesn’t deny it, if anything; it blames the supposed lethargy on the prosecution’s reluctance to properly discharge its evidential mandate, leaving courts with no option but to grant bail, pass light sentences to or altogether discharge the alleged threats.
Trials in Kenya are, by nature, adversarial. In criminal matters, the burden rests on the prosecution to prove its case beyond reasonable doubt. Courts are often guided by best evidence – that though circumstantial evidence may be accepted, it’s only persuasive. Alone, it cannot offset burden. By constantly informing judicial indecision and flying to cover up when they eventually happen, it is clear from the outset that the Directorate of Public Prosecutions (DPP) has played a key role in perpetrating extra judicial killings.
A damning report by UN Special Rapporteur on extra judicial killings, Philip Alston, created the impression of an inherently dysfunctional investigation and prosecution system. In one part he observed that:
“…Police investigations of murders are generally inadequate, due, in large part, to resource, training, and capacity constraints. But investigations are especially poor when the police themselves are implicated in a death. The cause of this is, in part, institutional: there is no independent Internal Affairs unit within the police force. Such cases are generally investigated by the Criminal Investigations Division (CID), the division responsible for all complex or serious investigations. But the problem is also one of will: those at the top of the force lack the determination to investigate themselves, or the will to institute the reforms that would improve transparency and accountability…”
In another, he further notes:
“…The structure and personalities within it had institutionalised impunity, characterised by failure to prosecute any senior figures for human rights abuses. Further the Attorney-General, who had security of tenure for life, was vested with powers to conduct or stop prosecutions (a power he constantly abused)…”
To avert a crisis, one of his principal recommendations was the separation of the investigative mandate from the prosecution, as well as re-structuring the AG’s powers to issue nolle prosequi orders. Though Kenya responded by enacting a new constitution that created the independent office of the DPP, this hasn’t stopped the Directorate from erroneously extending its mandate to public investigations. Worse, where DCI has stepped in, its investigations have often been shoddy – borderline cover-up.
Courts cannot afford to speculate, not in the least for criminal matters where a preponderance of doubt ought to see an accused discharged. Whoever approaches court must approach it with clear intention. So to say, failure of the prosecution often translates to a “failure” of the courts.
The conclusions of Alston were echoed by the findings of the Truth Justice and Reconciliation Committee (TJRC), and acknowledged by government in a later response. In its report, TJRC revisited a curious case in 2008 where a team of state counsels commissioned by the DPP (at the command of the AG, and with the help of investigators from the CID) and tasked with looking into the 2007 post-election crisis found that inquest files in “all the affected provinces” were “far from complete”, and that, “considering the high number of deaths reported, there should have been more inquest files opened or murder files forwarded”. In none of these cases did the investigators follow up with the complainants, let alone recommend anyone for prosecution – not even when 69 of those files related to cases individual police shootings.
Courts have also been criticised for being overzealous when it comes to granting bail. Many accuse them for overlooking certain important considerations such as public sentiment and the probability that releasing suspects in certain circumstances opens them to the threat of extra judicial killings.
However, it must be emphasised that, while the court could appreciate such dangers, the burden of proving compelling reasons also lies with the prosecution. As long as it does not sufficiently demonstrate the underlying dangers of public hostility, courts would have no choice but to grant bail. The court cannot argue on behalf of litigants (Republic vs. Joktan Mayende & 4 others eKLR). The jurisprudence of the Court in Randu Nzai Ruwa and 2 others vs. AG and 1 other eKLR was that it is not sufficient to make a claim, where it is the limiting agency; the state must sufficiently demonstrate why a certain right should be limited.
The reluctance of the DPP to exploit this position can only be explained it two ways. One, where the cue of the prosecution’s argument has been that the suspect poses a serious danger to national security, citing the danger of an outside killing without to an extent, incriminating the state is extremely difficult. Similarly, as it is argued on a case-by-case basis, negative public perception can be very difficult to prove.
At some point, with the emergence of the Flying Squad, there arose the perception that the Judiciary was failing in its duty, where police arrest suspected criminals, arraign them in court, and hear the next day that they have been released on bond or for lack of sufficient evidence.
As a result, some kind of frustration got into the police. This was the case with Shimoli Maina. He had been released several times by the courts after being arrested by the police, such that when he was killed, people drew some sigh of relief. Even then, it is not entirely the fault of the Judiciary; the main culprits, as has been alluded to earlier, are the investigative and prosecuting arms.
The absence of a credible witness mechanism also continues to pose serious threats on any attempted inquiries into extra judicial killings, and the quality of evidence presented in courts. Though Kenya boasts a legal framework of witness protection, massive gaps in the structural framework mean evidence against big time culprits of extra judicial killings (the State) remains far from assured. As evidence, the number of state victims remains on the high even with the enactment of the Witness Protection (Amendment) Act 2010, the Constitution (2010) and the policy guidelines of 2015. More needs to be done.
Of course, courts are not innocent bystanders in all this. After all, there is sufficient evidence to show that judges have, on occasion, been bribed or compromised so as to give unfair orders. In relation to the state, scholars have even argued that the Judiciary cannot survive where it is in constant conflict with the Executive (Hamilton). Otherwise, unless on occasional failures in law, the biggest culprits of the courts failures so far have been the investigative organs and the Directorate of Prosecution. If they are to even have a chance of speedily and successfully prosecuting alleged threats, these organs have to be revamped.