Every year, corruption in East Africa’s biggest economy (Kenya) drains billions of dollars from the state in rackets involving government officials and businesspeople – known as “tenderpreneurs” for their success in winning public contracts.
But according to the country’s top prosecutor corrupt judges are hampering the anti-graft drive in Kenya, undermining President Uhuru Kenyatta’s attempt to restore public trust in the government, national security and the economy.
Kenya has many challenges in prosecuting corruption cases but that is our reality. We must work with that.We must develop our own rules on how to prosecute and decide cases in a country that has so many challenges.
However, a critical analysis of the attitude of the Judiciary towards the anti-corruption war indicates that it is alienated from the people of this country in their aspiration to live in a corruption free society.
The simplest concern has been that corruption cases take too long. This is a complaint as old as the war against corruption.
Every Chief Justice promises to deal with this complaint.
The most recent promise was made by CJ David Maraga when he spoke at the Law Society of Kenya Annual Conference at Leisure Lodge in Kwale in August last year.
Beyond words, the CJ has been unable to innovate ways in which the Judiciary can make these cases move faster.
This is despite the fact that the Anti-Corruption and Economic Crimes Act allows the Judiciary to treat corruption cases as special and to prioritise them above all other cases.
The Act, in fact, requires that they be heard on a day-to-day basis. The Judiciary has failed to come up with strategies to ensure that this happens.
Instead, it blames lawyers for accused persons for delays through unnecessary adjournments and also prosecutors who aren’t fully prepared to present their cases.
But that is precisely the challenge we want the Judiciary to deal with. We want the Judiciary to stop playing victim and take charge.
We want every court from the trial magistrates’ court to the Supreme Court to set down the rules on the handling of corruption cases in Kenya.
In doing so, the Judiciary must remember that it is part of Kenya.
By this it is meant that whatever the challenges we as a country have, the Judiciary must accept the challenge as part of its reality and must find a way to work alongside that challenge in doing its work.
Take, for instance, the fact that we do not have many expert forensic prosecutors.
This makes prosecutions difficult and cases a bit harder to prosecute.
But are we going to keep releasing thieves on the basis that the prosecution was not as perfect as it could be?
The Judiciary must stop having unrealistic expectations from the criminal justice system. Even primitive societies have systems of criminal justice.
In any event, the prosecutors in our criminal justice system are Kenyan, they have studied in Kenya and are employed by Kenya.
Since the most fashionable excuse when cases are thrown out is to blame prosecutors, let’s then agree that all Kenyan lawyers are not that smart.
We can’t be if we attended the same schools and were taught by the same lecturers as these prosecutors.
So we have prosecutors who are not that smart, defence lawyers who are not smart either and judicial officers, also not that smart.
Now let’s come up with a system of criminal justice that can be run by people who are not that smart. That’s the only system that would work for us.