Wednesday, October 19, 2016

All abut process

The court is the last stage before a person, accused of an offence, is convicted and sentenced or acquitted and set at liberty. The process begins when a person is accused of having committed an offence as defined by an Act of Parliament. Yesterday key actors in the war on corruption presented themselves at State House, Nairobi, and spent the hours between 7 a.m. and the lunchtime news broadcast at 1 p.m. passing the buck like it was a hot potato in their hands.

The chief executive of the Ethics and Anti-corruption Commission said that it doesn't prosecute or jail corruption suspects; the Director of Public Prosecutions said that he could only approach the courts if the evidence and witnesses were provided by the police; the Director of Criminal Investigations said that the police mostly receive allegations that cannot stand in court and that the police do their part while others don't; and the Attorney-General hilariously blamed the judiciary for stalling cases through "dubious" injunctions.

The process always begins with an accusation or allegation. It can be made to the police, the Ethics and Anti-corruption Commission, the Office of the Director of Public Prosecutions or the Office of the Attorney-General. The accusation must always be founded on a keen reading of the relevant provision of the law. In any case, it is the police that shall investigate, gather evidence, interview witnesses and present its report to the Director of Public Prosecutions.

The DPP will review the case file. If the DPP believes that an offence has been committed and that the evidence and witness statements support that belief, the DPP will approach the courts and charge the suspected offender with the offence. The police investigation and the DPP's review of the case file are the cornerstones of the process of trying corruption offences. If the investigation is flawed or if the DPP's review is defective, the trail may only lead to one outcome: the acquittal of the accused.

Contrary to what the A-G believes, injunctions are not an inconvenience that can be wished away simply because they appear to be of dubious character; they are provided for in the law. It is not for the accused to give an inch when accused of an offence; it is for the DPP and the police to mount the most robust case and to challenge every application for an injunction with clarity and vigour.  That they have proven incapable or unwilling to do their part in corruption case after corruption case is not the fault of magistrates or judges. Unless the A-G can show that the injunctions granted by the courts had no foundation in the law, the declaration that they are "dubious" raises questions of its own about the role of the A-G in these fraught prosecutions.

The courts will issues injunctions and preside over trials based n the provisions of law and evidence adduced. Lazy judges or magistrates who allow their faith in Jesus or their cultural values to interfere with the proper interpretation of the law or assessment of evidence should be shown the door; they can teach penmanship or grammar some place other than on the Bench. There is a reason why the doctrine of separation of powers is gaining currency in Kenya; no one wants a repeat of the Moi era where the courts and the A-G were the president's lackeys and the rule of law was a cute legal doctrine law students were taught to forget as soon as they were called to the Bar. The A-G can criticise genuinely unwarranted injunctions but the only way he can prevail before judges or magistrates is by presenting a better case. Can he? Can the DPP? Will the police ever? You guess is as good as mine.

Welcome, Chief Justice.

David Maraga has been sworn in as the Chief Justice and Supreme Court has a new president. At the ceremony, the President urged the new Chief Justice to forge better relationships between the judiciary and the other arms of government while the fourteenth head of Kenya's judiciary promises to deal with election petitions swiftly, surely and fairly. Plus ça change, plus c'est la même chose.

One of the things that the thirteenth Chief Justice admitted to have failed to conquer was corruption, including in his Supreme Court. When he described Kenya as a bandit economy, he didn't do so in the context of a judiciary that was white as the driven snow. He made the declaration before the Philip Tunoi affidavit became public knowledge, as the Judicial Service Commission worked to confirm the veracity of the affidavit and the charges it laid at the feet of the new-retired Supreme Court judge. Dr Mutunga knew that corruption had hobbled the judiciary and had helped perpetuate the banditry that defined all arms of government.

Chief Justice Maraga's swearing in took place one day after a "governance and accountability" service that took place at State House at which the President scoffed at the efforts of the Auditor-General regarding the 2014 Eurobond. The President reminded the attendees of the summit that he has not failed at stopping corruption in his government; it is the people he had invited to the summit who had failed, when they protected and supported the corrupt. Chief Justice Maraga inherits Dr Mutunga's corrupted judiciary, perhaps a corrupted Supreme Court, and he is urged to forge better relationships by the Head of Government who admits no defeat in the war on corruption. (It almost goes without saying that Parliament and county assemblies cannot be trusted to be corruption-free zones.)

Yet, I care not for the corruption of the judiciary or any other arm of government. Kenya has been at this dance for too long. Life is short, so I shall focus on the judicial things that matter to me. Chief Justice Maraga is not a child, thank God, and he is unlikely to act as one. During his interviews, on hindsight, he conducted himself with a certain calm dignity that I found impressive. He was unflappable and didn't seem to take to heart the needling by some members of the Commission, unlike at least one other interviewee who ended up in a spitting match with a colleague of his on the Supreme Court. Chief Justice Maraga, on the face of it, is the calm the judiciary needs in increasingly roiled waters.

What some commentators have projected on him is interesting too. Dr Mutunga brought with him a non-traditional approach to public relations. He attempted to lead in the demystification of the judiciary which he signalled with the green robes and a casual approach to robing for advocates appearing before the Supreme Court. (Something I supported; horsehair wigs and advocates robes are not the measure of professionalism in a fast-paced, digital world.) Chief Justice Maraga may reverse the changes initiated by Dr Mutunga but I hope he does not. Instead he should deepen the relationship between the judiciary and court users, especially civilian members of the public. It is the only way that he can expect the support of the public for some unpopular decisions which he will inevitably have to make.

I hope he does forge better relations with the other arms of government, especially the national Executive. But he must be careful that this relationship is not an unhealthy one in which the whims and caprices of the national Executive compromise whatever vestiges of justice and fairness that still prevail in the judiciary. Finally, the new Chief Justice must be careful not to focus on colonial traditions at the expense of justice for the people. Wigs and robes are all well and good but they are not the sum or substance of the administration of justice. That remains, as it always has, a factor of the proper interpretation of the law and its fair application no matter the standing of the litigants before the courts. Sir, don't miss the forest for the trees.

Tuesday, October 18, 2016

Criminals and outlaws

Under ordinary circumstances, bending the rules or breaking the law is the exception and not the rule. If you're driving down a one-way street, it is not normal to make a three-point turn into oncoming traffic. If certain steps must be completed before a public tender is awarded, it is not normal for the giver of the tender to skip any or all the steps before awarding the tender. If one is disposing of rubbish, it is not normal to dispose of the rubbish outside the bin or into a water body. In Kenya, these are not ordinary circumstance; bending the rules and breaking the law are not exceptional acts but habitual ones.

The best depiction of the normalisation of the abnormal in Kenya is by the matatu industry. Public transport is rarely the most profitable venture in Kenya. It directly and indirectly employs hundreds of thousands of Kenyans crews, touts, mechanics, petrol station service providers, spare parts suppliers, bankers, lawyers, insurers and accountants. Matatus account for billions of shillings in investment, credit creation and value creation. These billions have turned the industry into an ecosystem. (In an ecosystem, there are predators, prey and scavengers.)

Once upon a time, the City Council of Nairobi operated the Kenya Bus Service, KBS. It is the KBS that had a monopoly of certain parts of the Nairobi Business District, especially the Central Bus Station off of Tom Mboya Street, the Ambassadeur Bus Stage along Moi Avenue and the KENCOM Bus Stage along City Hall Way. It operated other termini at Pumwani, Kangemi, Kawangware, Umoja and Dandora. It didn't enjoy a monopoly on public transport, but it had the best real estate in order to operate effectively.

Matatus, on the other hand, were confined to that zone known as "Commercial", bordered by Tom Mboya Street, Ronald Ngala Street, Ring Road, Kirinyaga Road and Murang'a Road. While the KBS operated a large fleet of scheduled, standard-sized buses that followed numbered routes, matatu owners tended to own one or two minibuses of varying designs and sizes that followed no schedule (and sometimes no set routes). "Commercial" was where you boarded your matatu if you cared little for the stodginess of the KBS, wanted to alight at non-designated places, enjoyed sub-woofer amplified dancehall, and didn't care if the matatu was overloaded or speeding. 

The Government of Kenya mirrored the public transport sector; some civil servants were the stodgy, play-by-the-rules KBS while others were the flashy and flamboyant matatu scofflaws, and this was starkly reflected in public institutions as well. And just as with the demise of the KBS and the takeover of the transport sector by the matatus, so too have the scofflaws captured the institutions of government, academia, the business sector and the civil society (including faith communities). The matatu culture pervades every part of our civic lives. It is almost expected of one to bend the rules or break the law because it is almost expected that little will be done about it. The offenders we punish the harshest are the ones least likely to affect the legitimacy of the Government we have; the offenders likely to receive the protection of the State and the adulation of the people are the ones who have turned our Government into a mirror of the matatu industry.

Chicken thieves, purse snatchers, burglars, armed robbers and murderers are quite often criminals. The corrupt in the highest echelons of the Government are almost always outlaws. You need to know the difference between criminals and outlaws if you are to understand the matatu-ness at the heart of our Government.

Just enforce the law

Three years ago, I advised you that to win the war on graft was simple in theory but hairy in practice. I advised you to simply enforce the laws we have on the books. I warned you that if you made Uhuru Kenyatta, President and Commander-in-Chief of the Defence Forces of Kenya, the anti-corruption warrior-in-chief, then the war against graft would be lost before the first shot was fired. I almost thought that I was wrong in the wake of the President's anti-corruption list of shame which he presented at the 2015 State of the Nation Address to a Joint Sitting of Parliament. As the State House Summit on Governance winds to a close, I offer my advice afresh: simply enforce the law that you have on the books.

Anti-corruption, in theory, can be tackled through the Anti-corruption and Economic Crimes Act, the Public Audit Act, the Public Procurement and Asset Disposal Act, the Leadership and Integrity Act, the Ethics and Anti-corruption Act, the Public Service Commission Act, the Commission on Administrative Justice Act and the Penal Code, the National Police Service Act and the Independent Policing Oversight Authority Act as well as the Banking Act, the Capital Markets Authority Act, the Income Tax Act and the Tax Procedures Act. The anti-corruption challenges we face have little to do with the legislative or institutional framework and everything to do with the enforcement or administration of the laws we have on our books and the men and women we have entrusted with the authority to administer or enforce the law.

Corruption remains one of the principal reasons why the legitimacy of the government is in doubt. Whenever agents of the Executive are caught up in corrupt acts, grand and small, the exhortations of the Head of Government are taken as the "wink, wink" of an insider covering his butt by saying what the people want to hear. When judicial officers preside over the "disappearance" of files, which reappear at the production of a facilitation fee, the Chief Justice's declaration that Kenya is a bandit economy ring just a little bit hollow. When parliamentarians establish private companies in order to "win tenders" overseen by members of the Executive whom the parliamentarians are supposed to hold to account, the enquiries televised from parliamentary committees' chambers expose the lie that the people's representatives have the people's fiscal interests at heart.

A State House summit on governance will not address the legitimacy deficit. It has been three-and-a-half years since we elected the President and he formed his government. In three years one of the most profound revelations, for which little comment has been made, is that of multi-millionaire policemen for whom even the rudiments of legitimate paper trails escape them. We have witnessed the conflicts of interest among members of the Cabinet caught up in billion-shillings tenders-gone-awry. Judges have been accused of shamelessly soliciting bribes for favourable decisions. No arm of government has been spared and the higher the ranks one goes, the more putrid the stench from all the "eating" going on.

State House can address the deficit in its legitimacy by protecting those entrusted to administer or enforce the law from political interference which has proven to be quite resilient. If a person wins their public office partly because the appointment is a calculated political or ethnic reward, the merits of the appointee's qualifications will not matter and their acts of omission and commission will almost always betray motivations other than the law. The law enforcement apparatus of this nation is riddled with cases of high appointments whose main justifications were political and ethnic balancing. These are not appointees who have the will to do their duty without fear or favour. These are appointees who are politically protected not because of their good work but because of the political fallout if they are not. Unless that calculus changes, summits and parliamentary addresses are all that the President will have to show for his fight against corruption. No more.