Wednesday, January 15, 2014

Waiting for the other shoe to drop.

The national values and principles of governance include the rule of law, equality and integrity (Article 10(2) of the Constitution). In exercising judicial authority, the courts and tribunals shall be guide by the [following] principles [of] alternative dispute forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms subject to [these] not [being] repugnant to justice and morality or results in outcomes that are repugnant to justice or morality (Article 159(2) and (3).

It is becoming increasingly difficult to see how the winding judicial process in L'affaire Kidero has the hallmarks of the rule of law, equality or integrity or how it cannot result in an outcome that is repugnant to morality or justice. The Governor of Nairobi City is alleged to have assaulted the Woman Representative of Nairobi City when the latter, he alleges, assaulted him by touching him inappropriately while leading irate workers of the City in a demonstration over the workers' terms and conditions of service. The Governor filed a complaint with the police on the same day. As did the Woman Representative. The police announced, rather grandiosely that they were investigating the alleged offences committed by the Governor and the Woman Representative against each other. This was in September 2013. It is only in January 2014 that the Director of Public Prosecutions directed the prosecution of the two City leaders. The High Court stayed the prosecutions of the two and asked the accused persons to sit down and reconcile.

From a technical perspective, the Governor, the Woman Representative and the High Court acted within the letter of the law. When it comes to the spirit of the law, it is safe to assume that the jury is still out. Every Kenyan has a strong opinion on the administration of justice. Many Kenyans will state without equivocation that the rich and powerful, the high and mighty will get away with offences because they are rich and powerful, high and mighty. They will also tell you that when a little fish commits an offence, the administration of justice machinery will throw the book at the little fish, lock them behind bars and throw away the key. Minor altercations among people who are not politicians or who do not have great wealth are almost always prosecuted with alacrity. There is never even the farce of an investigation; the word of the investigating authorities is practically holy writ in these cases. Not so for Governors and popular Woman Representatives.

There is logic in arguing that a Governor or a Woman Representative should not be treated in the same manner as the hoi polloi, but this logic makes a mockery of the rule of law, equality (before the law) or the justice and morality of the law. It is moot that the law treats the rich and poor differently, deferring to the rich and bringing the hammer down on the poor. Regardless of the merits of each others' cases against each other, it is only the willfully blind who will deny that the Governor assaulted the Woman Representative. It was, after all, captured on national TV. (Whether his assault on her was precipitated by her assault on him is what the courts must prove.) But the unctuousness demonstrated by the National Police Service, the Director of Public Prosecutions and the High Court make a mockery of Article 10 and Article 159 of the Constitution.

The effect of such mockery is that Kenyans from all walks of life will give lip service, if that, to the Constitution or its principles. What they will hanker for is the same power and privilege that ensures that the Constitution and the law bends to ones every whim. It is for this reason that very few Kenyans see a career outside the political arena as attractive; many of us dream of becoming the President, Deputy President, Governor, Senator, Member of the National Assembly, Cabinet Secretary, Principle Secretary, Member of a County Assembly, or Member of a County Executive. These are the men and women who are treated with kid gloves, if at all, by the forces of law and order when they are "in conflict with the law" and who very, very rarely see the inside of a jail cell. And if we keep treating them as the princes of old that they are treated like, the dream of "justice for all" will become the nightmare of a privileged few facing the pitchforks and torches of the great unwashed.

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