By MACHARIA GAITHO
If there is a group in Kenya which has to be grateful for a free, impartial and independent Judiciary, it is President Kenyatta, Deputy President William Ruto and their colleagues in the famous ‘Ocampo Six’.
The six walked away from serious charges of crimes against humanity at the International Criminal Court (ICC) because shoddy investigation and prosecution officers presented spectacularly hopeless cases.
It is generally acknowledged that cruel and despotic rule is the bane of many countries. The ICC was specifically established to ensure that those who incite murder and violence on an industrial scale as a means to seize or hold on to power are called to account.
International justice mechanisms — whether the ICC or special tribunals for Rwanda, the former Yugoslavia, Sierra Leone and others — are supposed to be the ultimate deterrent against genocide, ethnic cleansing, evictions and many other forms of organised violence that have been the curse of many regions across the globe.
In the wake of violence, such as Kenya’s descent into butchery following the disputed 2007 presidential election, there will always be pressure for justice. It becomes absolutely urgent that those responsible for such horrific crimes face the full force of the law.
Investigators and prosecutors, therefore, come under pressure to act swiftly and decisively. Courts hearing the ensuing cases quite often will be under pressure to reach speedy convictions. But whatever the public anger, the courts are still bound to remain impartial, avoid emotional or partisan entanglement and resist external pressure.
That independent impartial environment was what prevailed when the cases against Mr Kenyatta, Mr Ruto and the other four collapsed.
That outcome was a clear reminder that courts are not lynch mobs and will not entertain shoddy and incompetent prosecutions.
With that in mind, it is ironical that President Kenyatta, of all people, is leading a campaign against the Kenyan Judiciary over the slow conviction rate of graft cases.
The President should know and appreciate, from painful personal experience, that judges can only weigh the evidence placed before them and should never convict on public or political pressure.
He is understandably frustrated that one of his key legacy projects, the war against corruption, has so far not demonstrated any notable successes despite overwhelming public support.
But by turning his guns on Chief Justice David Maraga and the judicial branch, President Kenyatta is only providing political cover for those unable and unwilling to provide the evidence required to send the corrupt to jail.
Director of Public Prosecution Noordin Haji and Director of Criminal Investigations George Kinoti have been rightfully lauded for adding new resolve and muscle to the war on graft.
The two now have a new partner in former military and intelligence officer, Maj Twalib Mbarak, who recently replaced the hapless Halakhe Waqo as CEO of the Ethics and Anti-Corruption Commission.
The men at the helm of the anti-corruption war must halt the tendency to find a scapegoat in the Judiciary for their own failures. They must not support or sponsor social media campaigns against the institution of the Judiciary.
Their job is to painstakingly investigate and present foolproof cases to the courts. Only if the courts throw out cases despite clear evidence can one accuse the judges.
Even then, there is the process of appeals that must be exhausted and, where justified, there is resort to formal proceedings for removal of judges who may have betrayed their calling.
These are grave matters that shouldn’t be reduced to rants on the political platform.
Let us not forget the beauty of a legal system that allows the public to follow court cases and, therefore, gauge the strength of weakness of a prosecution case, or expose a judge who may have been influenced. What we have seen so far, unfortunately, is PR offensives and trial by media rather than presentation of rock-solid cases.
Now, this must not be read as defence of our judges. We have many who are corrupt or incompetent. We have seen ridiculous rulings allowing public officers indicted on criminal charges to remain in office where they can destroy evidence or intimidate witnesses.
Kenya remains the only country where criminal suspects can rush to court and get orders granting immunity from investigation, arrest and prosecution. If blue-collar criminals can get such protection, so can terrorists!
It is urgent that those responsible aggressively push in court, not the public soapbox, for removal of such orders. They may also want to launch investigations into forces within the Jubilee government actively sabotaging the anti-graft war.
Reported also by Daily Nation