Justice must not only be done; but must also be seen to be done.
Kenya has been praised across the globe for having some of the most progressive laws and policies on the continent. But many of these policies are gathering dust on shelves as implementation proves a challenge.
Our robust judicial system is our second claim to fame and pride on the continent. There is however the issue of case backlogs that Chief Justice Martha Koome has been working so hard to clear.
The recent unsubstantiated claim by President William Ruto of corruption in the Judiciary is worrying and marks a serious threat not just to the Judiciary but to the rights of all Kenyans.
Many of us grew up in this country believing the old Swahili saying 'mnyonge hana haki' (there's no justice for the weak or poor) because that was our reality and we had plenty of illustrative daily news headlines.
But since the promulgation of the current constitution in 2010, we have seen radical judicial reforms where powerful government officials were put to task over corrupt dealings, and no one was above the law.
But since Ruto came into office, I have lost count of cases involving powerful government officials that have collapsed due to unexplained lack of evidence, recanting witnesses, or technical loopholes.
None of these accused (and now acquitted) persons, many aligned to the current government and are even active members of the executive, were found innocent through a comprehensive judicial process.
In fact, if there were any stink of corruption in the current Judiciary, it would have been linked to these sudden turnarounds in otherwise robust cases.
But judges can only work within the confines of the law and laid down procedures, and when evidence disappears and witnesses retract their statements, the Judiciary system has no choice but to wash its hands off the matter – this is the opposite of corruption.
A classic illustration of this judicial crippling – not judicial corruption – was the recent acquittal of former Treasury Cabinet Secretary Henry Rotich when Milimani magistrate Eunice Nyutu lectured the prosecution for bungling the case and described the matter as “a well-choreographed acquittal”.
“Such conduct is an affront to the criminal justice system and a waste of judicial precious time. It is an insult to the dignity of the court and all the stakeholders here involved in the criminal justice system,” she added.
Ruto’s aggression towards the Judiciary is thus a direct assault on the last line of defence for the poor and powerless Kenyan – the real hustler who cannot afford to hire expensive legal representation, let alone bribe a judge.
His attack is also the start of a serious erosion of the rights and voices of the weak, as the Executive seeks to push through policies that have not received public support or followed proper public participation.
For all his railing about the frustrated development projects, Ruto has prominently failed to address any of the reasons why the government initiatives in question ended up in court in the first place.
Article 1 of the constitution boldly and defiantly states that “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” Any wielding of this power by the three arms of government is a delegated undertaking, not an entitled act.
If the people of Kenya (the ordinary citizens) feel that a given policy is oppressive and needs to be reviewed or retracted, then their voice is primary, and none of the “executive delegates” can impose anything until the real “power owner” is satisfied.
In his unsubstantiated accusations against the Judiciary, Ruto has repeatedly referred to faceless corrupt officers as standing in the way of projects that are “designed to improve the lives of Kenyans”.
Like an authoritarian father who dictates what’s good for the children, he places himself as the ultimate judge and jury over what is good for Kenyans, how this “good” should be implemented and even when to implement it.
It will therefore be no surprise if we start seeing this blatant stripping of the rights and voice of Kenya in other human rights violations for ordinary Kenyans in the coming weeks, months and years. It is the nature of authoritarian fathers to “impose protections” on their ignorant children who cannot think for themselves.
A robust Judiciary will always be the enemy of those who seek to step on the rights of the weak and those who want to impose their preferred policies with no regard for the constitutionally laid down procedures.
In fact, the housing levy and the social health fund may be the best solutions for the housing and health problems facing Kenyans, but if these are forced down our throats and our inputs and opinions about them are disregarded – then all signs point to even more serious human rights violations and “oppressive solutions” than the housing levy.
Justice is a noble and problematic goal, and a threat to justice anywhere – especially through the disparaging of the courts – is a serious threat to justice and a sanction of injustice everywhere else.
The old aphorism on justice still rings true today, and I hope Ruto is listening: “Justice must not only be done; but must also be seen to be done.”
Human rights defender and director of Red Planet PR