By Kabakua Mbogori
There is a famous quote associated with the former Peruvian field marshal, diplomat, and politician General Óscar Benavides, who also served as the 38th President of Peru that: “For my friends, everything; for my enemies, the law.” While this was first uttered in Peru many decades ago, it is in modern-day Russia where the twisted philosophy has found its most fervent expression. Vladimir Putin, the ferocious Russian strongman, has deployed this philosophy against his political opponents with considerable success. The judicial system of Russia is famous for its efficiency against dissidents and Putin’s political competitors. Professor Maria Popova has termed this skewed use of the law and legal institutions to achieve political goals as “Putin-Style” rule of law. Alexei Navalny, the Russian main opposition leader and the foremost critic of the Kremlin, has particularly borne the brunt of this flawed system of justice. In 2013 Navalny was sentenced to five years in jail for alleged theft in what many saw as a politically instigated show trial. Most recently, he was sentenced to 9 years in jail for alleged large-scale fraud and contempt. This followed an attempt at his life where the Kremlin is suspected to have poisoned him using a lethal nerve agent. Fortunately, he survived the scare after medical attention in a
German hospital.
The use of law and legal institutions to fulfil political objectives is not unique to Russia. It is an urge that is near irresistible in emerging democracies. The rule of law as a political-legal philosophy simply means a durable system of laws, institutions, norms, and societal commitment that delivers accountability, legal stability, open government, and accessible and impartial justice. When a country adheres to the ideals of rule of law, justice is delivered in a timely manner by competent, ethical, independent and neutral institutions that are detached from the politics of the day. The criminal justice system is effective, timely, impartial, adheres to due process, upholds the rights of the accused, and is free of corruption and improper government influence.
In Kenya, old habits die hard. The 2010 constitution has been hailed as one of the most progressive in the world. One of the constitutions’s most celebrated attributes is its unmistakable attempt to introduce a novel system of checking power through an array of independent institutions that are domiciled outside the traditional three arms of government. To ensure an effective and impartial criminal justice system, the drafters attempted to place the investigative and prosecutorial powers beyond the reach of political influences. Yet, the Jubilee regime, upon its ascent to power in 2013, embarked on a mission to dilute the clear intent of the constitution with respect to the independence of the Kenya police. The Constitution sets up a Police Commission to oversee the staffing of the police service. The Commission is supposed to recruit and appoint persons to hold or act in offices in the National Police service. To retain the independence of the service, the commission should ideally interview and recommend candidates for top police jobs. In 2014 the government introduced amendments to the National Police Service Act that introduced a President’s representative in the panel for selecting the inspector general and two deputies. This was a shameful subversion of the letter and intent of the constitution. This step was the original sin in the journey toward a politicized criminal justice system.
When you staff the police leadership with the cronies of the president, you deny the institution the necessary legitimacy to drive the criminal justice agenda. Not to forget that the head of public prosecutions is also a presidential appointee. While the constitution has placed a textual requirement for parliamentary approval of the DPP, experience shows that parliamentary approval processes in Kenya are nothing but a mere rubber stamp of the president’s wishes.
After the political fallout between the president and his deputy, there has been a hue and cry from the deputy president’s side of the divide that the president has deployed the criminal justice system to unfairly haunt DP Ruto’s political allies. Such allegations are difficult to discount when the police, who have the constitutional mandate to investigate crime, is at the beck and call of the executive. An approach to criminal punishment inspired by political motives is stark with innumerable dangers. In a fragile country like Kenya where the tribe is the fulcrum on which political activity turns, perceptions of bias in criminal prosecutions undermine the broader goal of accountability.
In recent times, the manner in which the DCI and the DPP have discharged their respective mandates has left little doubt that the two officers have become hatchet men for the president’s political agenda. It is undeniable that throughout this campaign season, DP Ruto has really struggled to attract overt support from especially the County Governors for fear (by the Governors) of retribution from the state. Such selective and unfair application of the law is antithetical to governance based on rule of law. Similarly, selective targeting of political opponents in an election year may raise issues of fairness of the electoral process.
It would appear that this state of affairs, and other political misfortunes that the DP has suffered lately, inspired the governance pillar of the Kenya Kwanza manifesto. These concerns are well captured on pages 57-61 of the manifesto. If elected to power, Ruto promises, among other things, to finance the independent institutions and enhance their technical capacity; adopt human rights approach in the war on terror; enhance the independence of EACC and the police to end their reliance on the Office of the President; entrench the independence of the Judiciary by operationalizing the Judiciary Fund; appoint all judges nominated by the Judicial Service Commission (JSC) to the Court of Appeal within seven days; establish a quasi-judicial public inquiry into state capture; transfer all devolved functions to counties, and transfer shareable revenue to counties in a timely manner.
Many people have genuine concerns about the DP’s commitment to stick to the lofty promises he makes in the event he wins the election. These fears are borne out of the failure of the Jubilee regime to see through most of the promises they had made prior to their election into office in 2013. The promise of computer tablets to school-going children and sports stadia have frequently been cited as two examples. While the DP has tried to dissociate himself from this Jubilee baggage, it appears the eloquence and the emphatic manner in which these promises were made have left an indelible memory in the minds of his detractors, who are happily using the same to discredit him. Still, DP Ruto’s unique ability to articulate issues in a manner accessible to the electorate is undeniable and might come to
his rescue.
All opinion polls carried out so far point to a two-horse race between the DP and former Premier Raila Odinga. It is expected that one of them will be president. Whoever becomes the president has a singular duty to ensure that the criminal justice system is not activated against their political opponents. Kenya should avoid “Putin-Style” rule of law by all means. (
Email your news TIPS to Editor@nairobilawmonthly.com, and to advertise with us, call +254715061658 anytime of the day
