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ANALYSIS: Why public opinion can never be evidence




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Any consumer of news in the last few months would have heard or read many times that there is a serious undertaking in Kenya known as the “war against corruption”.

Going by the media reports, statements and commentaries over the same period, the same person would think that all this war is being waged on all the necessary fronts and would be easily won, but for the Judiciary failing to play its part.

The arguments go that the Judiciary is the weak link in this chain involving the agencies that are meant to fight corruption.

Put simply, the word out there is that but for the indifference of the Judiciary, this war would well be underway and victory would be almost assured.

The bold ones go as far as saying that the Judiciary is the ugly duckling in this important national enterprise.

When the supposedly corrupt are arrested, the Judiciary quickly grants them bail on such derisory conditions that leaves the other agencies disenchanted.

The Judiciary just won’t let the prosecutors and the hard working police in the slipstream of public opinion just have their way, hurriedly try, mercilessly convict these corrupt people and incarcerate them.

A number of reasons are given for the frustration that other agencies and the citizens of Kenya suffer from the lack of progress in the war against corruption.

There is no doubt that most Kenyans, at least publicly, are concerned about the rampant corruption and its effect on the national psyche, quite apart from the ramifications on the economy.

The Judiciary is, therefore, expected to take note of public opinion and play its part to soothe this anxiety.

However, there is a danger in this fervour and rage directed at the Judiciary. It may be novel to Kenya but is not altogether unknown in other countries.

Politicians, bureaucrats and citizens in democracies tend to think that public opinion should take primacy in management of national affairs and be reflected in the decisions of courts.

This is more so in cases where serious crime is considered pervasive and a danger to society — like corruption is in Kenya.

The public outcry will be for instant action, like in Kenya today.

There is the thinking that legal protections of the rights of accused persons such as bail, presumption of innocence and all the rights of an accused person under the Constitution are but mere puffs which the courts ought to ignore or sidestep in the quest for the bigger national objective of showing intolerance to the supposedly corrupt.

This impassioned plea on the courts not to waste time with legal niceties ignores an important issue at the core of justice.

That while the Bill of Rights applies to all persons without discrimination, it is only those who are charged with offences to which the rights of an accused person applies.

The right to a fair trial for an accused person is a special category of right.

This bundle of rights is directed as a charge upon a judicial officer to apply them to ensure that the accused person is treated fairly and given a fair chance against improper conviction and incarceration.

This right to a fair trial for an accused person must apply irrespective of the umbrage with which the public views the accused person or the disgust at the offence with which the accused person is charged.

The Judiciary of Kenya has a spokesperson in Justice Thomas Bingham of the United Kingdom.

On a similar issue he said this: “There are doubtless those who would wish to lock up those who are suspected of serious offences, and in the time-honoured phrase, throw away the key. But a suspect is by definition a person against whom no offence has been proved.”

Justice Bingham was more pointed in his view that police and security agencies, indeed even the most prudent of prosecutors, have been proven wrong.

Public opinion and perception of emergency with regard to the prevalence of a crime or of its effect on the society must not be considered any better.

Public opinion, however informed or intense, is not evidence. Just because the public thinks that a given corruption case is serious, which it is, is not a reason for impatience with the Judiciary when suspects are not manhandled within the judicial system.

The fact that there is war in the literal or metaphorical sense against a category of crime is no justification to play fast and loose with the rights of accused persons.

Again Lord Atkin spoke to this in a case during the Second World War regarding the liberties of a citizen.


He was clear that “amid the clash of arms, the laws cannot be silent. The laws must speak the same language in war or in peace.”

I add the fact that the war in this case was a global conflict, but the same principle would apply even in a metaphorical war against corruption.

Lord Atkin added on the role of a judge in times of war (of whatever kind) that the judge must stand between the subject and any attempted encroachments in liberty by the Executive.

I paraphrase Lord Atkin that it would be a dereliction of constitutionally sanctioned duty for judges to tune in to public opinion and deny bail or set usurious bail terms to prevent suspects of any category of offence from bail.

The third issue at play is the place of public opinion in judicial decision-making. I think of the case of S.V. Makwanyane and Another in South Africa.

In this case, an issue arose on the constitutionality of capital punishment.

The State argued that the court ought to take account of the fact that majority of the citizens appeared to support capital punishment as a penalty for serious crimes.

That would seem to be in all fours with the Kenyan support for, among others, denial of bail or stringent bail terms for corruption suspects.

The Constitutional Court judges responded in these words:

“What of the argument that the court should not subvert the will of the people? Public opinion is no substitute for the court’s duty to interpret the Constitution without fear or favour.

“If public opinion were to be decisive, then there would be no reason for constitutional adjudication.

“The very reason for vesting the power of judicial review on the courts was to protect the rights of minorities and others who may find themselves on the wrong side of popular public opinion, including social outcasts (such as the supposedly corrupt). This court will not allow itself to be diverted from its duty to act as an independent arbiter of the Constitution by making choices on the basis that they will find favour with the public.”

In short, the unanimous judicial response in those countries is clear that public opinion is neither law nor evidence to be considered in any case, especially where the Constitution prescribes some rights for an accused person.

In the United States, the judges in West Virginia State Board of Education explained that this protection is based on the principle that the Bill of Rights is meant to withdraw and protect the rights of the citizen from the reach of political, social or economic controversy.

There is no doubt that the insistence on upholding the rights of accused persons will be annoying to an impatient citizenry and burdensome to vigilant prosecutors.

But that is the role of the Judiciary in this. In the much debated but rarely understood or read decision in Petition on the Presidential Elections of August 2017, the majority judges said they foresaw the irritation that may come with such application of the Constitution.

They said that to “close our eyes to constitutional violations would be a dereliction of duty and we refuse to accept such invitation however popular that invitation may seem”.

Therefore, the court said: “Let the majesty of the Constitution reverberate across the lengths and breadths of the motherland, … and to those who bear the responsibility of leadership, let it be a constant irritant.”

The lesson to be drawn here is that what the Judiciary of Kenya is doing by protecting the rights of accused persons is not unique.

The public needs to convert its fervour to patience with those waging this important war on corruption.

Secondly, there needs to be an understanding that the Judiciary is simply performing its role as it ought — and so should the other arms of government and the citizenry.

Thirdly, it will do good to remember that when the Judiciary performs its role as it ought, not everyone will be enthused by the rate of progress or even the effect of the orders.

The Judiciary is not meant to play ball with public opinion. In conclusion, the anger and fulmination against the Judiciary in this war is a distraction that will not advance this war on any front.

Mr Owino is the head of legal affairs at Nation Media Group



Sordid tale of the bank ‘that would bribe God’




Bank of Credit and Commerce International. August 1991. [File, Standard]

“This bank would bribe God.” These words of a former employee of the disgraced Bank of Credit and Commerce International (BCCI) sum up one of the most rotten global financial institutions.
BCCI pitched itself as a top bank for the Third World, but its spectacular collapse would reveal a web of transnational corruption and a playground for dictators, drug lords and terrorists.
It was one of the largest banks cutting across 69 countries and its aftermath would cause despair to innocent depositors, including Kenyans.
BCCI, which had $20 billion (Sh2.1 trillion in today’s exchange rate) assets globally, was revealed to have lost more than its entire capital.
The bank was founded in 1972 by the crafty Pakistani banker Agha Hasan Abedi.
He was loved in his homeland for his charitable acts but would go on to break every rule known to God and man.
In 1991, the Bank of England (BoE) froze its assets, citing large-scale fraud running for several years. This would see the bank cease operations in multiple countries. The Luxembourg-based BCCI was 77 per cent owned by the Gulf Emirate of Abu Dhabi.  
BoE investigations had unearthed laundering of drugs money, terrorism financing and the bank boasted of having high-profile customers such as Panama’s former strongman Manual Noriega as customers.
The Standard, quoting “highly placed” sources reported that Abu Dhabi ruler Sheikh Zayed Sultan would act as guarantor to protect the savings of Kenyan depositors.
The bank had five branches countrywide and panic had gripped depositors on the state of their money.
Central Bank of Kenya (CBK) would then move to appoint a manager to oversee the operations of the BCCI operations in Kenya.
It sent statements assuring depositors that their money was safe.
The Standard reported that the Sheikh would be approaching the Kenyan and other regional subsidiaries of the bank to urge them to maintain operations and assure them of his personal support.
It was said that contact between CBK and Abu Dhabi was “likely.”
This came as the British Ambassador to the UAE Graham Burton implored the gulf state to help compensate Britons, and the Indian government also took similar steps.
The collapse of BCCI was, however, not expect to badly hit the Kenyan banking system. This was during the sleazy 1990s when Kenya’s banking system was badly tested. It was the era of high graft and “political banks,” where the institutions fraudulently lent to firms belonging or connected to politicians, who were sometimes also shareholders.
And even though the impact was expected to be minimal, it was projected that a significant number of depositors would transfer funds from Asian and Arab banks to other local institutions.
“Confidence in Arab banking has taken a serious knock,” the “highly placed” source told The Standard.
BCCI didn’t go down without a fight. It accused the British government of a conspiracy to bring down the Pakistani-run bank.  The Sheikh was said to be furious and would later engage in a protracted legal battle with the British.
“It looks to us like a Western plot to eliminate a successful Muslim-run Third World Bank. We know that it often acted unethically. But that is no excuse for putting it out of business, especially as the Sultan of Abu Dhabi had agreed to a restructuring plan,” said a spokesperson for British Asians.
A CBK statement signed by then-Deputy Governor Wanjohi Murithi said it was keenly monitoring affairs of the mother bank and would go to lengths to protect Kenyan depositors.
“In this respect, the CBK has sought and obtained the assurance of the branch’s management that the interests of depositors are not put at risk by the difficulties facing the parent company and that the bank will meet any withdrawal instructions by depositors in the normal course of business,” said Mr Murithi.
CBK added that it had maintained surveillance of the local branch and was satisfied with its solvency and liquidity.
This was meant to stop Kenyans from making panic withdrawals.
For instance, armed policemen would be deployed at the bank’s Nairobi branch on Koinange Street after the bank had announced it would shut its Kenyan operations.
In Britain, thousands of businesses owned by British Asians were on the verge of financial ruin following the closure of BCCI.
Their firms held almost half of the 120,000 bank accounts registered with BCCI in Britain. 
The African Development Bank was also not spared from this mess, with the bulk of its funds deposited and BCCI and stood to lose every coin.
Criminal culture
In Britain, local authorities from Scotland to the Channel Islands are said to have lost over £100 million (Sh15.2 billion in today’s exchange rate).
The biggest puzzle remained how BCCI was allowed by BoE and other monetary regulation authorities globally to reach such levels of fraudulence.
This was despite the bank being under tight watch owing to the conviction of some of its executives on narcotics laundering charges in the US.
Coast politician, the late Shariff Nassir, would claim that five primary schools in Mombasa lost nearly Sh1 million and appealed to then Education Minister George Saitoti to help recover the savings. Then BoE Governor Robin Leigh-Pemberton condemned it as so deeply immersed in fraud that rescue or recovery – at least in Britain – was out of the question.
“The culture of the bank is criminal,” he said. The bank was revealed to have targeted the Third World and had created several “institutional devices” to promote its operations in developing countries.
These included the Third World Foundation for Social and Economic Studies, a British-registered charity.
“It allowed it to cultivate high-level contacts among international statesmen,” reported The Observer, a British newspaper.
BCCI also arranged an annual Third World lecture and a Third World prize endowment fund of about $10 million (Sh1 billion in today’s exchange rate).
Winners of the annual prize had included Nelson Mandela (1985), sir Bob Geldof (1986) and Archbishop Desmond Tutu (1989).
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Agricultural Development Corporation Chief Accountant Gerald Karuga on the Spot Over Fraud –




Gerald Karuga, the acting chief accountant at the Agricultural Development Corporation (ADC), is on the spot over fraud in land dealings.

ADC was established in 1965 through an Act of Parliament Cap 346 to facilitate the land transfer programme from European settlers to locals after Kenya gained independence.

Karuga is under fire for allegedly aiding a former powerful permanent secretary in the KANU era Benjamin Kipkulei to deprive ADC beneficiaries of their land in Naivasha.

Kahawa Tungu understands that the aggrieved parties continue to protest the injustice and are now asking the Ethics and Anti-corruption Commission (EACC) and the Directorate of Criminal Investigations (DCI) to probe Karuga.

A source who spoke to Weekly Citizen publication revealed that Managing Director Mohammed Dulle is also involved in the mess at ADC.

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Dulle is accused of sidelining a section of staffers in the parastatal.

The sources at ADC intimated that Karuga has been placed strategically at ADC to safeguard interests of many people who acquired the corporations’ land as “donations” from former President Daniel Arap Moi.

Despite working at ADC for many years Karuga has never been transferred, a trend that has raised eyebrows.

“Karuga has worked here for more than 30 years and unlike other senior officers in other parastatals who are transferred after promotion or moved to different ministries, for him, he has stuck here for all these years and we highly suspect that he is aiding people who were dished out with big chunks of land belonging to the corporation in different parts of the country,” said the source.

In the case of Karuga safeguarding Kipkulei’s interests, workers at the parastatals and the victims who claim to have lost their land in Naivasha revealed that during the Moi regime some senior officials used dubious means to register people as beneficiaries of land without their knowledge and later on colluded with rogue land officials at the Ministry of Lands to acquire title deeds in their names instead of those of the benefactors.

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“We have information that Karuga has benefitted much from Kipkulei through helping him and this can be proved by the fact that since the matter of the Naivasha land began, he has been seen changing and buying high-end vehicles that many people of his rank in government can’t afford to buy or maintain,” the source added.

“He is even building a big apartment for rent in Ruiru town.”

The wealthy officer is valued at over Sh1.5 billion in prime properties and real estate.

Last month, more than 100 squatters caused scenes in Naivasha after raiding a private firm owned by Kipkulei.

The squatters, who claimed to have lived on the land for more than 40 years, were protesting take over of the land by a private developer who had allegedly bought the land from the former PS.

They pulled down a three-kilometre fence that the private developed had erected.

The squatters claimed that the former PS had not informed them that he had sold the land and that the developer was spraying harmful chemicals on the grass affecting their livestock and homes built on a section of the land.

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Naivasha Deputy County Commissioner Kisilu Mutua later issued a statement warning the squatters against encroaching on Kipkuleir’s land.

“They are illegally invading private land. We shall not allow the rule of the jungle to take root,” warned Mutua.

Meanwhile, a parliamentary committee recently demanded to know identities of 10 faceless people who grabbed 30,350 acres of land belonging to the parastatal, exposing the rot at the corporation.

ADC Chairman Nick Salat, who doubles up as the KANU party Secretary-General, denied knowledge of the individuals and has asked DCI to probe the matter.

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William Ruto eyes Raila Odinga Nyanza backyard




Deputy President William Ruto will next month take his ‘hustler nation’ campaigns to his main rival, ODM leader Raila Odinga’s Nyanza backyard, in an escalation of the 2022 General Election competition.

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