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Revising our outdated justice system (Part VI)

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By LUIS FRANCESCHI
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The bashing of the Judiciary in social media, is not part of a genuine fight against corruption. It looks more like a political campaign to manipulate the outcome of that fight; to get ”my man or my woman” in there.

The campaign aims at character assassination. The fighters personify the problem and forget the process, which involves prosecutors, lawyers, police and the public.

After all, the justice process is a mirror of our sincerity as a society. We cannot expect perfect justice in a society where lying and stealing have become the standards of political, financial or social survival.

The legacy of Mutunga and Maraga

Chief Justice Mutunga and Chief Justice Maraga defined their tenure by giving due respect to ”judicial independence”. After all, as Senior Counsel Paul Muite says, ”a genuinely independent, competent and corruption-free Judiciary is what so many Kenyans sacrificed for.”

This ”independence” has put the Judiciary on the spot, in the limelight. It has put an end to the ”control” the executive had traditionally exercised on the courts. Too often, chief justices were summoned to State House and given directions on this or that matter.

Judicial independence is a huge challenge in all democracies, and more so in young ones, where powers are still growing their muscles; institutions are weak and success or failure is personalised.

Judicial independence from executive influence is essential for justice to function. Perceptions are an important part of this, and this suspension has greatly harmed that perception. For example, the 2007-2008 post-election violence was fuelled by the perception that our courts were not independent from executive influence and going to court was not an option. Five years later, in 2013, the opposite happened. Although the court still sided with the wishes of the executive, the perception of independence of the Supreme Court encouraged leaders to accept whatever had happened and ”move on”.

Again, that same perception pushed the executive to ”accept” the nullification of the results of the August 2017 election. The Court’s position may seem uncertain, but it is not. It means that no matter who likes it and who does not, if an election is not properly run then it will be nullified…and that is certain.

Independence from the executive does not mean perfection

But independence from the executive does not mean independence from cartels, bribes or ignorance. Independence from the executive brings to the fore the best and the worst in every judge, and this is where the vetting, appointment and disciplining of judges play an essential role.

When we say ”the judiciary is corrupt and useless” we are simply trying to get political or financial advantage from a complex situation. We need to look at three key issues, which are the responsibility of parliament and the Judicial Service Commission (JSC).First, the law, which is under the control of parliament, and where there are contradictions and inconsistencies. Second, the appointments, which are controlled by the JSC. How are the judges chosen? What criteria are used and what have the vetting boards been looking at? The code of conduct or the judge’s character and why? Third, disciplining, also under the JSC. Judges and magistrates should be accountable for their behaviour and decisions.

Today, in Kenya we have discipline and accountability challenges. In the rush to pass the Code of Conduct and Ethics of the Judiciary, we ended up with a code that describes all type of offences but prescribes no punishment.

If judges are not properly chosen and disciplined, they become accountable only to themselves and, in some cases, they are prey to cartels that may coerce or bribe them, to social or media pressure, and to their own ignorance of the law (culpable or innocent).

Legal certainty and predictability are essential

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The result is a disjointed and contradicting body of judicial decisions (jurisprudence), a pretty bad sign for any judiciary. This kills the development of jurisprudence and creates a state of legal uncertainty, which is not only a legal problem, but also a political problem that will necessarily push the executive to intervene.

It is essential that courts create legal certainty by developing a coherent and consistent interpretation of the law. The European Union has been making untold efforts to achieve some sort of coherence in the development of their jurisprudence. Nils Engstad, President of the Council of Europe’s Consultative Council of European Judges (CCJE), has always insisted that unless there is coherence, there will never be certainty, and this uncertainty could break the Union.

Legal certainty contributes to public confidence in the courts and in the legal system as a whole. Judges must always strive to apply the law predictably and consistently or else they jeopardise justice and decrease public confidence in the legal system.

Sentencing guidelines did not help much

CJ Mutunga’s team tried to correct this trend by issuing sentencing guidelines. These guidelines were supposed to help judges stick to certain basic principles. Soon after, it was clear that the guidelines were preventing the development of jurisprudence not by contradiction but by lack of innovation and imagination. They straightjacketed the judges into a rigid system that undermined equity.

A brilliant young lawyer, Tracy Kigen, was shocked at the inconsistencies in our court system. In the case of Al Riaz International Limited v Ganjoni Properties Limited, there was a dispute on the occupancy of a motor vehicle yard by two companies. Al Riaz was evicted by the landlord for non-payment of rent. Following the eviction of Al Riaz, Fuji Motors rented out the yard.

Al Riaz went to court to seek an injunction to have it stay on the land and the court granted it one. Fuji Motors also sought orders to have them stay on. This resulted in two different court orders from two different High Court judges, one in favour of Al Riaz to be reinstated on the land and the other in favour of Fuji Motors to retain its occupancy of the same land.

Incoherent interpretation

One of the biggest gaps in modern legal education is that lawyers learn just law. They learn to apply the law but do not know how to understand the context. This ignorance of more technical areas also affects judges who jump into interpreting situations by the book, often without measuring the financial, social or political consequences of their decisions.

Mr Wachira Maina, a constitutional lawyer, has always criticised some key decisions which demonstrated the general ignorance lawyers and judges tend to have of more technical subjects. For example, the presidential petition decision of 2013 was marred by contradictions. The judges had no time (just two weeks) to become conversant with technical aspects of a poorly planned and executed technology-based election.

Mr Maina also describes the Digital Migration decision as one of the worst in the history of the Supreme Court. In this case, the judges were not conversant with the relevant technical terms.

Certainly, in other cases, bad decisions are the result of political bias or fear. This could have happened to the CDF (Constituency Development Fund) case, where Justice Lenaola’s decision in the High Court was reversed by the Court of Appeal without a comprehensive reasoning on the matter.

The task ahead is huge. In the building of a coherent body of jurisprudence, the challenge is not just independence from the executive, which is currently under attack, but also independence from cartels and personal ignorance.



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Sordid tale of the bank ‘that would bribe God’

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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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Monitor water pumps remotely via your phone

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 –

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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.

Read Also: Galana Kulalu Irrigation Scheme To Undergo Viability Test Before Being Privatised

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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.

Email your news TIPS to [email protected] or WhatsApp +254708677607. You can also find us on Telegram through www.t.me/kahawatungu

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William Ruto eyes Raila Odinga Nyanza backyard

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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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