Political weaponization of justice

Focus on prosecution of cases in Kenya

Phylis Njeri Ngirita of the NYS saga.

By Chrispin Bosire and Aaron Onyango

Government agencies continue to trade accusations on who is to blame for the failing war on corruption. For President Uhuru Kenyatta, the fault cannot be his, considering the much he has done in pushing the wagon forward – including suspending and sacking ministers?

Former Attorney General, Githu Muigai blames the Judiciary; former Prime Minister Raila Odinga too. In his recent address at the University of Nairobi, Raila wondered why culprits are arrested and evidence adduced in court only for the courts to release them on lenient bail terms.

The Director of Public Prosecutions is equally convinced that the Judiciary is not doing enough to ensure speedy and reliable disposal of cases against corruption suspects. Then there is Aden Duale’s warning to revisit: “And I want to tell one Judge Odunga, when we open on January 24, I will introduce a motion to discuss you. We will expose you. You cannot be a member of the Bench and play tribal politics.”

Responding to the accusations, Chief Justice Hon. David Maraga advises that the war on corruption cannot be won by Friday arrests. “Courts are tilted on evidence,” is his rallying call, and that if the prosecution continues to present evidence of no probative value, courts will have little choice but to dismiss. He asserts that the Judiciary will not allow interference on its independence.

All these altercations then speak to the huge gap and unprecedented blame games between and state agencies. On their part, the President’s utterances express the general attitude of the highest political office towards the Judiciary.

In a constitutional democracy such as Kenya, the rule of law must be upheld. This means that in every decision and action of government officials or state organs, the law, especially the Constitution must be upheld. It’s the duty of the courts to protect the constitution and guard against impunity.

Political goodwill

Lately, there seems to be a general political goodwill to fight corruption, unlike before. Sensing its devastating effects, the general mood is that the vice must be dealt with. But could the Judiciary indeed be hampering efforts to rid the country of the vice?

Has it allowed itself to be held hostage by the powerful masters of impunity as the principals say? There is nothing wrong with criticizing the Judiciary, but where the intention is to discredit the operations of courts and judges, everyone should be worried.

Ours is an adversarial system of criminal procedure, hence the courts must always play their silent role. Yet the courts can only do so much as the investigative and prosecutorial roles lie with the Directorate of Criminal Investigations and Office of the Director of Public Prosecutions respectively. When applying themselves, courts are aware that the fundamental tenet of innocence till proof of guilt irrespective of the nature of the crimes must remain.

It is hypocritical for the Executive to blame the judiciary when it has gained notoriety for ignoring court orders. It’s natural that judicial officers won’t be as eager to discharge their duties in such an environment.

Right to bail and bond in context

Bail is a right guaranteed by the Constitution of Kenya 2010. The same Constitution grants judges discretion to determine bail or bond – as was laid down in ‘R v. Baktash Akasha Abdalla & 3 Others’, each case should be dealt with on its own merits. It is also emphatic that individuals should not be remanded in custody for offences punishable by fine only or for imprisonment for a period of 6 months or less.

In ‘Republic v Joktan Mayende & 4 Others’, the then High Court Justice Francis Gikonyo ruled that the high standard under Article 49(1) (h) of the Constitution is more in accord with the stringent constitutional requirements in Article 24 of the Constitution on limitation of rights and fundamental freedoms, and requires the prosecution to prove that it is proportionate and justified in the circumstances of the case to deny the accused bail.

The constitutional right of the accused to be released on bond is not absolute since it has been limited by the Constitution itself in two respects: the release on bond or bail is on reasonable conditions; the accused will not be released on bond or bail where there are compelling reasons for continued holding.

Policy action to rationalize bail

The Judiciary has developed Bond and Bail Policy Guidelines to guide courts in determining applications which are outlined here: the nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty; the strength of the prosecution case; the character and antecedents of the accused person; failure of the accused person to observe bail or bond terms; the likelihood of interfering with witnesses; the need to protect the victim or victims of the crime; the relationship between the accused person and the potential witnesses; the best interest of child offenders; whether the accused person is a flight risk; whether the accused person is gainfully employed; and public order, peace and security and protection of the accused persons.

Owing to the wide latitude courts are allowed to exercise judicial discretion in grant or denial of bail, some court decisions have been met with backlash. For instance, there was public uproar after Justice Hedwig Ong’udi’s decision to grant bail to Phylis Njeri Ngirita and her co-accused who were implicated in a major corruption scandal involving monies in the excess of Sh1 billion in what has come to be known as NYS 2.

In this particular instance, the loopholes of the inflexible rules of the Judiciary came into focus and two issues arose; the desire of the public to tame corruption and individual right to bail. In its interpretation of the law, should the judiciary enforce the rights of an individual against the collective rights and desire of the public? What of when the public opinion has no provision in law, should the judiciary stick to its narrow approach or should its responsibility to be the bearer of what the people term as ‘justice take precedence’?

Jowie Irungu and his co accused Jackie Maribe in the murder of Monica Kimani.

Jowie’s denied application

In the murder case of Patricia Kimani, Joseph ‘Jowie) Irungu, was denied bail on grounds that he was a flight risk; to ensure his protection and a suspected likelihood of interfering with witnesses. This was a popular decision

The point that the foregoing paragraph underscores is that courts, while determining the question of bail, which is a legal issue, squarely consider factors laid down in law, not public mood or executive will and might. Politicians, while hiding behind the shadow of criticisms on courts, intentionally bring them under fire and public lynching, hence interfering with their judicial authority. Some judges, for different reasons, end up recusing themselves from sensitive cases.

Legislative vs judicial function

It is imperative to note that the Judiciary is empowered by the Constitution to make decisions that may affect the legislative role of Parliament. For instance, matters relating to constitutionality of legislation are determined and recommendations made to parliament for possible reform areas. In pursuit of this role, numerous judicial decisions have been criticised as ones meant to “frustrate” the efforts of the Executive and Legislature in fighting crime, eradicating corruption and effect tangible change in the lives of citizens.

For instance, the courts, in allowing stay applications for scheduled demolition of buildings cited by both the national and county government for demolition, where some of the buildings are obviously situated on public land and road reserves, has been criticised as an organ prepared to delay the justice and prevent government from reclaiming public land and implementing its promises.

With regard to the extent of judicial intervention in matters of law making, Justice John Marshall in ‘Marbury’ sets the boundaries succinctly by asserting that it is the responsibility of the courts to exercise judicial review to ensure that legislation is in compliance with the law. Justice Marshall did well in asserting that the role of the court is not to assume that of law making but to merely to ensure compliance with the constitution.

While pursuing the role of ensuring that the legislature complies with constitutional standards in law making, it should not be assumed that the judiciary seeks to stifle political or popular opinion. Rather, it should be viewed as allowing itself to change with the fluctuating conditions in the country because in the end, it is only a custodian of the judicial authority on behalf of the people and the power is reposed with the people, whose interests are vested in and represented by the elected officials.

This is the position of the law. (

– Writer is an advocate of the High Court.



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