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