By Kenyatta Otieno
I recently found myself at the Makadara Law Courts. I have visited the courts several times in the past to offer (moral and financial) support to quite a number of people. On this day, I was surprised when I found some members of Judiciary staff holding prayers outside the courts before people could go in. When we went in, I was impressed when I saw screen on which case particulars scrolled slowly for people to see which court to attend. That is the legacy of retired Chief Justice Dr Willy Mutunga.
It is prudent for every Kenyan of sound mind to spare some time every year and visit our courtrooms. There is a big difference between court drama Vihoja Mahakamani and the real proceedings. The common practice of waiting to fall on the wrong side of the law to have a feel of how the wheels of our justice systems turn is unwise, in my opinion. My experience from observing how cases are dispensed with has led me to view our legal system as pedestrian in terms of how the public responds and from how judiciary personnel conduct their business.
The phrase “the law is an ass” was coined in 1838 to illustrate the application of laws that run contrary to common sense. This was long before the Americans popularised the term “asshole” in reference to a stupid person. Charles Dickens, in his 1938 book “Oliver Twist” introduces us to Mr Bumble, the unhappy spouse of a domineering wife. He is told in court: “… the law supposes that your wife acts under your direction.” Mr Bumble responds: “If the law supposes that,” he says, squeezing his hat emphatically in both hands, “the law is an ass – an idiot.”
In this, phrase the law is compared to a donkey, which is seen as a stupid animal. Apparently, that same stupidity is what is captured in the colloquial expression, asshole. To me, in as much as the law is an ass, it is also an asshole.
Anyway, back to my story. I am among the first people to enter the courtroom around half past eight. I take my seat and, as it has become common nowadays, take out my phone to fiddle with as I wait. I forgot a copy of Chinua Achebe’s book “Things Fall Apart”, which I had planned to read, in the car.
A few minutes past 9am, the magistrate walks in and we all rise. He is a young man who looks like a brother to a former QTV news anchor. I make a quick mental note about his age from his well-cut suit and reckon that if he is not young, then he has a very good sense of fashion. The court clerk shoves the first file in front of him after reading out the names. The case begins.
The first person is wearing glasses, dressed in a suit and has a lawyer who stands to address the court. Courtroom delivery is an art. His case has already been heard partially by another magistrate who has since been transferred. He is asked if he wants it to proceed or have the new magistrate begin all over; he settles for the latter option. The mention is set for September and his lawyer makes a request to have his client exempted from court on that day. The magistrate insists he has never heard of criminal proceedings starting without the defendant. The lawyer digs in and makes a moving argument. The magistrate asks for the prosecutor’s opinion and then rules that it is important that the suspect be in court. The court wins and the first man on the board walks out.
The second defendant had been brought in from remand sharing handcuffs with another. He is on his feet, forcing his compatriot to sit with one hand raised; the seated man does look too sure if he should let his hand hang like that or pull it down, and so he stays, oscillating between wanting to let it stay and pulling it down.
The man standing is a veteran of the courts. Apparently he was charged with two counts in one offence, and he has already served six months for one count at Kamiti. He is back in court for the second one. He cannot afford a lawyer but from what he is saying, he can give many lawyers a run for their money in criminal law. He has mastered the art of taking his pauses to give the magistrate time to write what he has just said.
He outlines how he has spent three years in remand and how his family is suffering because of his absence. The law is stupid, when it shits on you; it will not remember or care that you are a taxpayer who contributes to the well being of other Kenyans, he says.
He complains that the defence has been reluctant to bring the complainant, and witnesses have grown disinterested in the case. He quotes to subsections of the law, which he calls vipengee 100 and 200. Lastly he quotes the phrase “Justice delayed is justice denied”. The judge grants his prayers for adjournment and he gets another hearing date.
Next in line is a trio of two middle-aged ladies and one youngish looking lady. The younger woman walks to the imaginary dock, some distance from the congregants. Her family has raised the money required to bail her out. The three are here for a robbery with violence charge. Because it is a hearing, we don’t get to hear the particulars of the charges. The prosecutor says that the complainant has not shown up but that he had put in a request to withdraw the charges.
When the court clerk asks the defendants to address the court, we are told that the complainant withdrew the charges last year. He had written a letter as required and deposited it with the DPP’s office but, apparently, the letter has never reached court. The complainant has never also come to court since to ascertain that he wants the case withdrawn. Some consultations ensue between the clerk and prosecutor.
The prosecutor speaks in a deep, low voice directly to the magistrate denying people like me who came here to hear and witness court proceedings the chance to capture the weight of his words. Next thing we know, the clerk addressing the defendants: “The court has set you free, but if the complainant or someone else comes back to court for the same offence, you will be recalled.” The ladies’ hands (all three pairs) go straight for their faces, and tears begin to flow. The law had just dropped hot poop on a freezing case and in a minute the matter had thawed. They cannot believe their eyes, er, ears.
The next cases involved taking hearing dates, last adjournments and lack of witnesses. One of the suspects brought in from the cells has not been able to raise his Sh20,000 cash bail. He pleads with the judge to reduce it so that he can go care for his ailing single mother. The judge reduces it to Sh15,000 and then moves on to other matters. The remaining cases have witnesses so the team prepares for hearings.
Next on the imaginary dock is a defilement suspect. He has on a skullcap. The defendant requests for a translator because he is fluent in his mother tongue. The clerk walks out to get one and the son of a single mother raises his hand to request for further reduction of his bail terms. The judge waves his hand while saying that he is done with his matter. The translator comes and the chap in skullcap happens to have visited his sister in the city from the rural area before he was arrested for this offence. He has no lawyer so he asks the witnesses questions like a novice to the law. The “ass” side of the law has welcomed him to the city with its full bitings, and the smell is not nice.
Then comes a member of Team Mafisi Sacco, a tout. He is accused of luring a lady into a house somewhere in Eastlands, drugging her then going on to have canal knowledge of her. His lawyer puts the complainant to task and for once I get a feel of real law. He asks mean questions, that defence lawyer. The lady does her best to respond. The prosecution says the other witnesses will be called at a later date, which is promptly fixed after the lawyer has consulted his diary…
My take out is Kenyans attitude – that of accepting moving on. We lack the staying in power when facing the wheels of justice, which, like the speed of an ass, turn slowly but surely. Most of the cases put aside had witnesses who have failed to turn up in court on several occasions, and the defendants were asking for last adjournments. At last, the realisation dawns on me: to those with money, the law can be an ass; to the poor, it is an ass that farts on a good day, and poops when it wills.
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