With our kind of judiciary, how can impunity fail to thrive?

By Shadrack Muyesu

Pity the prosecutor

Prosecutors are usually the first people to arrive at the court station – at least two hours before 9a.m. when proceedings commence. The first stop is their desk at the prosecution office where familiarity ends with collecting the day’s files. Next is the serenity of the court room where they review the files and plan their itinerary for the day. In the heat of battle, prosecution is a hard task which typically doesn’t allow one time to gather their thoughts.

The prosecutor has to assess their evidence and prepare all responses and applications in advance. The excuse has to be ready. Morning is the time to confirm the attendance of witnesses, the availability of police files and physical as well as documentary evidence. They have to call and make do with the grumpiness of investigation officers and doctors many of who, like the best of us, are never at hand to pick their calls in certain hours. Imagine indulging three or four witness per file for 20 files. It isn’t a great sport.

At proceedings, most of the time will be spent procuring adjournments and asking the court to compel the attendance of witnesses – most of whom either skipped or showed up absent crucial documents. The joke will repeat for the next two years, on average, the time which the hardest working court takes to dispense with a file. These two years often end in an acquittal.

There are many things explaining the low conviction rates – the bad blood between the Office of the Director of Public Prosecutions and the Police is the main culprit. A conversation with a senior judicial officer at the Chief Magistrate’s Court at Makadara reveals that many police officers habour grudges with government for taking prosecutorial powers away from them and placing them on the shoulders of advocates. 

“Prosecuting in the real world is a big deal. A prosecutor is the beating heart of any criminal matter that carries through court. And that comes with lots of responsibility and “opportunity”. The average prosecutor is overwhelmed with offers to bungle or withdraw cases. And even where this isn’t the case, the prestige of the office, at least in the eyes of the lay public, makes it an enviable job. This is what was taken away from police officers.”

Reforms meant that advocates went away with the steaks while the police grappled with the hard boring work of conducting investigations. Instructions from the prosecution are interpreted as orders and chest thumping by police officers who, understandably, suffer an acute inferiority complex. Add that to the meager salaries they earn in an environment of high risk and one begins to understand why proper investigations aren’t the priority for most police officers. 

She adds: “While the conduct of police officers leaves a lot to be desired, prosecutors, indeed, the court, cannot afford to antagonise them. They are crucial players in the trial process whose ill-will could cause the whole thing to grind to a halt. In our court users meetings, we urge judicial officers to be careful with the way they treat them.”

At times, judges may act honestly yet horribly misapply the law, and cause great damage to the Republic… And where there are glaring, unexplainable errors, one is left to wonder if the mistakes were innocent after all.

In part, this explains why forensic examinations, audits, data collection and mapping of suspects almost always never happen locally. Only in the highest profile cases will the investigation officer go beyond the statement of the complainant to examine its truth and ponder the culpability of suspects other than those blamed by the complainant. Without this information, the prosecution’s evidence stands on the feeble legs of the complainant’s report, the arresting officer’s testimony and documents like P3 forms which merely confirm the crime rather than the identity of the perpetrator. 

The court’s hands are tied. The prosecution cannot go out of its way to source evidence. That’s not their mandate. On their behalf, magistrates can only work with the evidence before them – unless, of course, they act instinctively and jail in spite of evidence, which endeavor could cost them their jobs. 

At the same time, in light of the ongoing exercise to clear the huge backlog of cases, it ought to be remembered that judicial officers are now under strict instructions from the Chief Justice to determine matters in good time. When a player seems to be wasting time, the magistrate has no choice but to drop the matter or make an unpopular determination lest they fall behind schedule. It’s a precarious position. 

Bungling prosecutors

The ODPP must take its fair share of the blame. For starters perhaps due to the sheer volume of work and the limited time they have to adequately prepare, prosecutors rarely cross-examine witnesses and when they do, they surrender meekly. I mean, why won’t they when they have to change their strategy on the morning of the hearing because a file came in late or for the umpteenth time, despite numerous summons and arrest warrants, a critical player failed to appear? 

With investigators not helping matters, you could also blame their hesitance on weak files. It is for the same reason that prosecution appeals are almost unheard of in lower courts. Under no pressure to deliver convictions as in other jurisdictions, burdened with work and with limited support, prosecutors are simply happy when a matter determines – regardless of the nature of that result.

Then there are the corrupt ones who take bribes to kill cases. The mind immediately shifts to the Assa Nyakundi probe and the recent fertilizer case. In the former, the Director of Criminal Investigations and the DPP are on record as blaming junior officers of charging the city lawyer with manslaughter – a charge that attracts a significantly lesser sentence – in spite of overwhelming evidence to the contrary. The officers have since been interdicted. 

The fertiliser issue paints an even clearer picture of the wretched lengths the DCI and the ODPP will go to frustrate the cause of justice when the stakes are high enough. Here, the ODPP claimed 3, 500 tons of OCP fertilizer worth some Ksh300 million had traces of mercury only to fail to produce test results when requested by the Court, and opposed prayers to re-test, which would have aided their case. The DPP, the Kenya Bureau of Standards and the Kenya Revenue Authority joined forces in vehemently opposing any plans to retest the fertiliser. The DPP ignored four court orders to that effect and later withdrew the case. 

Appearing in the matter, Paul Muite SC shed light on the whole charade when submitting that the charges were nothing beyond a trade war between cartels that did not want cheap fertiliser to reach farmers and wanted to edge a particular player who imports cheap fertiliser from the market. 

“The real fear is that OCP Kenya’s fertiliser is cheap and will retail at Ksh2, 500 (per bag) with high productivity rate of up to 20 per cent. If it was to be used, there would be no need for subsidised fertiliser which retails at Ksh3,500 per bag,” Muite said.

The unholy alliance is just a tip of the iceberg. Well-placed sources in busy stations such as Milimani say that a small fee to throw a spanner in the works is the order of business. It may come to the shock of many but the truth is that the dramatic arrests and public parading that have come to define operations at the DCI aren’t the work of an overzealous yet patriotic organ. As our Magistrate tells us, the true purpose of the dramatics is to warn the real culprits of the impeding investigations and urge them to cover their tracks.

“Of all the heavy talk and chest thumping, most of the corruption matters haven’t moved beyond plea. Very little of any will be prosecuted to the very end. None will result in a conviction. Why? Because potential witnesses have been arraigned as suspects while the actual sinners are protected. The arrests are like the proverbial bell around the cat’s neck. They are simply a warning that ‘we are coming’.”

“Even if they were serious, how do the ODPP and DCI expect to secure the cooperation of the very Judiciary they have set out to embarrass? Jurists hold all the cards and they are going to stand in solidarity with their colleagues if only to teach the other side a lesson. Each must hold their own.”

Judges and magistrates are equally guilty

It’s not like Judges and magistrates are the saints. In every court station, there are the dreaded and respected courts while there are those where everyone with a nefarious agenda scrambles to obtain audience. You can never read it on the faces of the jurists. Prima facie they appear saintly and professional but in the background they work in cahoots with prosecutors – receiving bribes from litigants with clerks and pupils as the conduits. 

A great example is a recent matter in which well-placed sources intimate that the exiting judicial officer often hosted lawyers at his establishment in Utawala where they blessed him with cash bribes. A young, prominent lawyer is particularly guilty. 

Kenyans will also remember the contentious retirement age for judges issue where a party bypassed the duty court to obtain curious orders from a Supreme Court Judge. It is a universal affliction! 

At times, judges may act honestly yet horribly misapply the law and cause great damage to the Republic. Law isn’t a mathematical science. Interpretations and results can vary depending on the philosophy of the jurists. But where there are glaring errors, departures from long settled principles and conclusions that cannot be justified, one is left to wonder whether the mistakes were innocent after all.   

The International Center for Policy and Conflict & 5 others v. AG and 5 others (2013) eKLR where the implication of the Hague trial on the legibility of President Uhuru Kenyatta and William Ruto to contest the 2013 was in issue is one such case. Here, the High Court misapplied the law to judg inter alia, that it lacked jurisdiction to determine the petition and that, until they had been proven guilty and exhausted all avenues of appeal and review, the respondents were free to contest the elections. 

On the question of jurisdiction, the Court contradicted itself when it stated in one part that exclusive original jurisdiction lay with the Supreme Court and in another that (exclusive original jurisdiction) lay with the Independent Electoral and Boundaries Commission.

A better reasoned decision was in Mumo Matemu where the Court of Appeal decided that a court’s oversight role ended with ensuring adherence to procedure and the Constitutional standard. It held that where there was a breach of the set standard, a court could only order a repeat process and not replace the decision of the decision-making body as the High Court had opined. The implication of both decisions was to deliver a mortal wound to Chapter six of the Constitution of Kenya, 2010.