BY SHADRACK MUYESU
In 2013, when confronted with a question on whether Messrs. Uhuru Kenyatta and William Ruto could participate in the upcoming presidential election in spite of the charges facing them at the International Criminal Court, the Supreme Court affirmed an accused person’s right to be presumed innocent until proof of guilt is established and, in so doing, cleared the dynamic duo to contest the historic election. According to the Court, the presumption of innocence remained until the accused exhausted all appellate avenues available to them.
Sometime later, the courts also decided that an economic crime could not be proved against an accused person unless the crime could be directly attributed to them. A tacit understanding needs to exist between two people where one agrees to offer a certain payment/ favor in order to obtain a certain benefit from a public officer acting in their official capacity. In bribery claims, for example, the court felt the need to establish a nexus between the alleged bribe and the favor sought.
These decisions are important because they sealed the fate of Chapter 6 of the Constitution of Kenya 2010. And, frankly, if we continue to apply these lofty standards then there’s little hope that we will ever bring corrupt state officers to account.
We all saw what happened in the Senate on 25th June. The Malala Committee failed to attribute any of the crimes to Kirinyaga Governor Anne Waiguru, only accepting that there had been irregularities before inviting independent agencies to conduct investigations. Yet, even if it had, it’s plausible that a court of competent jurisdiction would have rescued her. Waiguru may be guilty, but how do you prove it in light of the aforementioned decisions? Her signature does not feature anywhere, she doesn’t use her corporate email and acts through proxies.
In the Spirit of the Constitution
It’s now obvious that the Supreme Court misdirected itself when it rendered its decision in the Uhuru-Ruto case, ‘The International Center for Policy and Conflict & 5 Others v. AG and 5 Others’. And if I were one of the court’s learned judges, I would anticipate an opportunity to correct that error.
Evidently, the decision goes against the Spirit of the Constitution — to mean its overall intent which can be determined from construing it holistically and pondering the politics that led to its promulgation. Did the drafters (and indeed Kenyans) intend that leaders continue holding office in spite of serious question marks concerning their integrity?
Article 99(3) ought to be read in light of the transformative nature of the Constitution. A transformative document implies a deliberate desire to make a substantive change in the society; it is a commitment by state functionaries to realize the change through the laws that the Legislature makes, the execution of decrees, and the adjudication role of the Judiciary.
Walter Khobe has written — and I agree — that the normative grounding of the 2010 Constitution sought to deal with three sins that have historically bedeviled the Kenyan judiciary: corruption, executive mindedness and formalist/legalistic reasoning. At the time of promulgation, Kenyans were sick of corruption and impunity, hence Chapter 6. Their disgust was reflected in the manner in which they eagerly prosecuted the Nancy Baraza matter (the first of its kind under the new constitution) to cause her to vacate office for a seemingly innocuous crime (by local standards).
The essence of Chapter 6 was to ensure that people of questionable character remained far away from public office. Specifically, we wanted public servants charged with certain offenses to be suspended from duty until their matter is fully adjudicated upon. The intention is there in black and white in the written record of discussions that premised the Constitution.
As regards escaping from the formalistic/legalistic that had defined the Judiciary of the old, it’s not the place of judges or legislators to think on behalf of Kenyans. They should simply do what Wanjiku wants. To do this is to simply apply the law as it is and not how they think it should be: and if there is a problem in implementation, to simply return to the people for direction. If they did so, all corrupt men and women would be relics of a past age.
When Senator Kipchumba Murkomen questioned the standard that the Malala Committee had applied in prosecuting Waiguru, his Siaya Counterpart James Orengo cautioned that the Senate was bound by the precedent set by the Supreme Court. At the hearing itself, Waiguru’s defence team repeatedly insisted on adherence to strict rules of evidence. Admittedly they succeeded when the committee retained a raft of evidence “improperly” before them yet refused to be guided by it. These are grave omissions.
From the beginning, the Committee proceedings were a quasi-judicial process, meaning that rules of judicial proceedings do not apply in their strictest sense. That is why the Constitution contemplates an appeal at the Supreme Court, where strict rules may be followed, to mitigate against any injustice.
We mustn’t forget that Parliament is a house of inquiry. This purpose cannot be achieved if the House is converted into a courtroom. While judicial proceedings are adversarial in nature, House proceedings are inquisitorial, which allows any member to participate in the proceedings and ask questions in accordance with the rules. And, as a matter of practical consideration, the senators are not trained jurists. How can they appreciate the rules of civil and criminal procedure to ensure that those before them they can abide by (the rules?). I mean, how would Malala, a thespian, know if Paul Nyamodi (SC) was misdirecting “the Court”? Committee proceedings are for laymen, they are meant to achieve justice as the man on the proverbial Clapham omnibus perceives it.
In sum, Waiguru could well have been guilty, but we have made it impossible to hold her kind to account. In the meantime, the only lessons we can draw from her story is for junior staffers to insist on written instructions from their superiors lest the boss throws them under the bus when it’s convenient for them to do so. It is also important to have proper job descriptions and establish a clear chain of command as well as proper communication channels to avoid this business of guessing the duty bearer — insisting that public servants use their corporate emails for official duties is a good place to start. (
— The Writer is the Legal Officer, Turkana University College