Thursday, April 21, 2011



By Jerry Okungu

Nairobi, Kenya

April 20, 2011

I hate to state this but Kenya’s judicial system is so flawed that just passing a new constitution or appointing a new chief justice or a new prosecutor cannot fix the mess overnight. We have lived with a rotten judicial system for three decades and the damage done to this public service department will take almost as many years if not more to fix.

Let us not kid ourselves that in the next five months we will be able to have in place a credible court and police system to deal with cases such as the ones we have referred to The Hague.

A little recap of our recent history will illustrate my point.

In 1975, one of Kenya’s most colourful politicians was murdered in cold blood under Jomo Kenyatta’s regime. Despite Parliament setting up a Commission of Inquiry known as the Mwangale Commission; despite the Commission presenting its findings to none other than Jomo Kenyatta, no arrests or prosecutions were undertaken to date. The report got buried either in the President’s office or in the State Law Office. For the last 36 years, the Kariuki family has been crying for justice and pleading with every regime that has followed Jomo’s reign with very little success.

In 1990, Dr. John Robert Ouko was murdered under similar circumstances under the Daniel Moi regime. Like in the JM Kariuki’s case, a judicial commission was set up under retired Chief Justice Evans Gicheru. However, when the commission was about to start summoning crucial witnesses, it was disbanded on orders of the President to be replaced with Scotland Yard personnel. Again when the Scotland Yard investigators were about to break through the murder case, their contract was suddenly terminated.

In the Ouko case, at least one District Commissioner was arraigned in court and charged with the murder however, there were no credible witnesses to testify against him. They had either died or disappeared without trace. Twenty-one years later, hardly any witness is alive despite the fact that the case file is still open and active.

Does anybody out there recall the murder mystery of Julie Ward of the UK in our game park? That too remains unresolved. No suspects were ever prosecuted successfully. The few that were arraigned in court through the efforts of her father had no credible prosecution witnesses.

Just like in the JM Kariuki‘s case, Ouko’s murder involved highly ranked and influential individuals in Daniel arap Moi’s government. The behavior of presidents, the State Law Office, the police and the judiciary in these murders most foul were pointer to the fact that they were victims of the powers of the day.

The latest case involving William Ruto in a land scandal is a pointer that we are still far away from having a judicial system that can dispense equal justice to the victims and villains equally. William Ruto’s case which was filed in 2003 lasted a good eight years before the courts could hear it. And when it did, circumstances had drastically changed. Ruto was then a sitting cabinet minister and in that capacity had given a job under his docket to his chief prosecution witness.

So by the time the case came up; thanks to the “efficiency” of the State Law Office, five star prosecution witnesses were already dead, fifteen others had disappeared without trace. As for William Ruto’s chief prosecution witness, she just ignored the court summons.

William Ruto’s acquittal makes interesting reading considering that he is one of the Ocampo Six suspects whose case the Attorney General is fighting tooth and nail to have referred back to Kenya because according to the Attorney General, we now have a functioning judicial system.

Another case of interest that the Attorney General generously terminated was that of another MP for Cherangany, Hon Kutuny. Kutuny together with another MP for Kuria, Dr. Machage were charged with crimes related to hate speech during the referendum campaigns. Since filing the cases and arraigning the same suspects in court, the AG went silent only to reemerge eight months later with a nolle prosequi in the case against Hon. Kutuny. This acquittal came hot on the heels of William Ruto’s acquittal. It was easy to see a connection between the two cases. The two high profile MPs are political bed fellows. Now it is only a matter of time before Dr. Machage and Mrs. Miller, another hate speech suspect is acquitted.

At a moment in our history when our judiciary is still dysfunctional, when the Police Commissioner and the State Law Office can still trade accusations and engage in blame game publicly whenever government loses a crucial case; it would be foolhardy for us to believe that we are out of the woods.

As it is, the Judicial Service Commission is yet to vet judges and magistrates, recruit the Chief Justice, its deputy, Court of Appeal, Supreme Court and High Court judges; it is premature to go fretting around that we are now ready to deal with cases involving crimes against humanity. It is even foolhardy and the height of hypocrisy to tell the world that we are ready to try the belligerent Ocampo Six suspects when three years later, we have not investigated, tried and jailed a single rapist, murderer or arsonist of the post election violence perpetrators. We should be humble enough to let Ocampo proceed with his suspects.