On paper, the independence of the Executive, Legislature and the Judiciary is emphasised, but the reality is the exact antithesis.
Well, the Legislature is a spoilt brat that throws tantrums and holds anybody or institution that points to its myriad foibles to ransom.
That has had a dampening effect on the Judiciary, manifest in the ease with which bail is issued to politicians, their cronies and anybody who has real money. Yet for those who don’t have two cents to rub together, it is a completely different ball game.
Our laws neither serve nor protect the rights and interests of commoners. Rather, they are designed to cow commoners into subservience.
Take the case in which a traffic police officer stops a motorist, finds him carrying stock for his kiosk on the back seat and, citing an obscure Insurance Act he cannot expound, threatens to arrest the motorist. Challenged to quote the law, he charges the motorist with resisting arrest. Criminals and thieves hide behind defamation laws to stifle the media, civil society and other whistleblowers, yet the Judiciary willingly plays along in the charade.
What irks, however, is the emerging new-normal that is anticipatory bail; one to which politicians are enamoured and find so easy to get from judicial officers. I am yet to hear of anybody outside the political realm, and one who is not immensely rich, being granted anticipatory bail.
Those actions deny Wanjiku (the common citizen) basic rights, including good health, education, employment, food and shelter, and lead to death.
The Constitution and its array of civil rights and liberties were crafted in such a way that if a person believes he or she may be arrested for an offence that is not bailable, he or she may apply to the High Court for anticipatory bail to avoid arrest. It is the practice in many countries, the only difference being that in Kenya, it is susceptible to serious abuse.
The concept behind our version of anticipatory bail is to jam the wheels of justice and to think that judges and magistrates are complicit in this scheme that practically holds this country to ransom. It is sickening.
We have ended up with a superclass of individuals who can sit back, plan a murder or commit a crime and casually walk over the High Court to secure anticipatory bail after the act.
The nonsense that is anticipatory bail is breeding dangerous lawbreakers in society. It is imposing upon society a group of untouchables with enough money and political clout to tie our fates to their indiscretions. These operatives can buy their way out of any situation, yet the laws that should rein them in, have been exploited and turned around to defeat and make nonsense of the court system.
Lawyers and judges are the enemies of Kenya. By their deeds, they are the biggest abettors of high profile crime and breakdown in the social order. An indigent, hungry mother steals bananas to feed her hungry kids and gets ten years in jail for her trouble.
Corruption is economic sabotage, that steals funds meant for the greater good of the nation and also leads to denial of fundamental rights and freedoms as envisaged in Chapter 4 of the Constitution.
Some big fish, goaded by an insatiable lust for riches, steals billions of taxpayers’ money; uses the loot to hire lawyers and gets bail.
After years of perfunctory hearings, he is acquitted. The latter have stolen enough money that could have given Kenyans comprehensive free healthcare services and free schooling to aid fight against illiteracy. Such porous legal system will never deliver justice!
President Uhuru Kenyatta has said he will not side with evildoers and shamed the Judiciary for failing to convict drug peddlers and those facing corruption charges.
Addressing the nation from State House Mombasa on Tuesday, President Kenyatta cited the recent drug trafficking case involving two Akasha brothers who were sentenced for more than 20 years in the US. President Kenyatta said Kenya’s Judiciary was not taking matters seriously.
The Akasha cases were completed within a year from the time they were extradited.
“I think it’s a shame on our country that we prosecuted a case against drug traffickers in our country and we couldn’t get a prosecution and within a year of them being arraigned in the United States, they have been jailed for not less than 25 years. That is something that our judiciary should come to terms with,” he said.
President Kenyatta further mentioned he has done his part in the war against corruption, saying the war will be won if the Judiciary starts convicting those charged with corruption.