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FRANCESCHI: Revising our outdated justice system (Part V)




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Confusion reigned, tempers were hot and fears were in high gear. As the siege at DusitD2 ended, many fingers were pointing at the Judiciary. It looked like a genuine outburst of hatred. ”Our justice system is to blame” chanted some, as if the Judiciary had orchestrated the attacks.

Anyone who knows how the system works, will immediately realise that these complaints were misguided. Maybe they were genuine or perhaps they were triggered by some mischievous political motifs. Whatever the case, our justice system needs to change, but this change will be utterly useless if we do not know how the system works.

Those who truly know how the judiciary works, know that judges are passive receivers. Judges are in the hands of police investigators, public prosecutors, defence lawyers and legislators.

Judges are not free to decided cases as they wish. They are (or should be) blind to rumours, public opinion, perceptions and friendships. Their decisions are guided by the quality and honesty of what police, prosecutors and defence lawyers put on the table, informed by unforgiving laws and jurisprudence applicable to the matter in question.

There are many ”ifs” in the justice process. If the police do not do their job when investigating a crime, and the prosecutor is not competent and dedicated, and if the laws guiding the case are poorly drafted or inaccurate, then there is no doubt the judge will be forced to reach the wrong conclusion.

The judge knows it but can do nothing about it; a judge may free terrorists, drug dealers or serial killers and it is done in an act of ”justice”. The judge can do nothing about it no matter how much we blame judges and how many times we replace the Chief Justice.

Judicial reforms will necessarily involve police reforms, high-level training of prosecutors, change in lawyers’ attitude, law reforms and good selection of judges. This week’s piece is dedicated to the necessary reforms in the agonisingly-slow pace of the justice machine and the court process.

The changing face of the judicial process

Thirty-five years ago, in 1983, Justice Bhagwati said in the Indian case of National Textile Workers’ Union v. P.R. Ramakrishnan, We cannot allow the dead hand of the past to stifle the growth of the living present…if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move, adapting itself to a fast-changing society and not lag behind.”

Kelvin Mbatia, a young upcoming scholar, warns that the inefficiencies of the system have become part and parcel of the lives and livelihoods of too many people. There will be resistance within the judiciary and at the practitioners’ level, where information technology will drive out auxiliary staff and unsettle the comfort zone for experienced lawyers, paralegals and judicial officers. Kelvin says that the transformation journey for the judiciary will face opposition from the good, the bad and the ugly; it will not be rosy.

Of course, introducing information technology and software in such a messy environment will not be the panacea. It would be like automating a factory of rotten apples. We will only achieve a faster production of rotten apples.

The use and abuse of adjournments

First, the judicial process must be redesigned to tighten the loose ends. This is a serious law reform task. In these reforms, we must do away with the abuse of adjournments (distressing delaying tactics that account for our huge backlog and delayed justice) and the abuse of preliminary objections and vain appeals. Judges and practitioners must be held accountable for their actions.

We also should digitise all payment systems and do away with any direct contact and exchange of cash between practitioners and any judicial or administrative officer.


A young brilliant lawyer, Angela Wahito, told me that the judiciary had a case backlog of 6,551,451; 7,222,516 and 8,335,759 in the years 2004, 2005 and 2006 respectively. The improvement since 2011 has been amazing. A case audit of 2013 revealed a case backlog of 316,441, while in February 2016 it stood at 338,498 out of which 62,505 cases were over 10 years old and 75,274 cases were 5-10 years old.

The Judicial Transformation Report shows that as at December 2016, there were 360,284 pending cases. Some 175,191 of them were over 5 years old, 95,284 cases were two to five years old, and 90,950 were between one and two years old.

We are in a rat race. New cases are filed every day; even as other cases are cleared. Thus, despite these significant gains, the problem of backlog remains constant. Confusing jurisprudence and frivolous litigation seems to be at the root of this challenge.

IT is not the solution but a necessary step

A young student, Brian Omari is a great fan of the use of IT in legal process. He says that many countries have embraced information technology use in their court system. Transparency and effectiveness are emphasised as two positive consequences of the use of information and communication technologies (ICT) in courts.

Former Chief Registrar of the Judiciary, Ms Gladys Boss Shollei had already foreseen the need of introducing new technologies in the court room, including case management systems, court records and digital audio/video recording. Her successor in the Chief Registrar’s Office, Ms Anne Amadi, has already taken daring steps to digitalise the courts.

In the U.K. courts, CaseLines has replaced paper. CaseLines is a handy, accurate and comprehensive case management software. It has brought down the average completion of court cases to almost 30 weeks.

The United Arab Emirates has gone a step further. In Dubai, where investment courts also use CaseLines, the average completion of cases is four weeks. In Abu Dhabi, the global markets courts launched a digital courtroom a month ago. It handles civil and commercial disputes, allowing plaintiffs and respondents to upload their documents and appear in court through an online portal.

The courtroom is paperless and built on blockchain technology for transparency and accountability. Once the parties gain access to the online portal, they can electronically file all their necessary documents from anywhere in the world and at any time and uploaded information is accessible to lawyers and judges.

Files do not get lost and they are not printed. All movements are traceable, even if anything is removed or deleted. The unethical practice of ‘hiring’ professional witnesses and abusing adjournments is properly dealt with.

For our justice system to function, we need a working police with proficient investigators. We also need a dedicated, honest and competent team of prosecutors; and upright lawyers. We also need to reform our procedural laws and support the judiciary by putting proper systems in place. Most backlog cases deal with land law. There is no reason why our land registry should not be digitised and properly mapped.

This may sound like a dream. But until then, we must close every possible loophole in the system, and that is where the help of IT comes in handy.

The fact is that the ongoing outcry about the lack of convictions in corruption and terrorism cases is not only the judiciary’s fault. In each case, we need to look at the quality of the investigation, the competence of the prosecution and the behaviour of the lawyer and the judge. It is a whole package.

Next week we will focus on the judge and his task in building a coherent body of jurisprudence.



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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Tracking and monitoring motor vehicles is not new to Kenyans. Competition to install affordable tracking devices is fierce but essential for fleet managers who receive reports online and track vehicles from the comfort of their desk.

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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.

Read: Ministry of Agriculture Apologizes After Sending Out Tweets Portraying the President in bad light

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.

Read Also: DP Ruto Wants NCPB And Other Agricultural Bodies Merged For Efficiency

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.

Acrimonious fall-out

Development agenda

Won’t bear fruit

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