Friday, September 14, 2012



Rebecca Nabutola and co-accused in court

By Jerry Okungu
Nairobi, Kenya
September 12, 2012

I felt Rebecca Nabutola’s pain and anguish in the courtroom that morning she was sentenced to prison. Yes, I felt bad for Achieng’ Ong’onga’ too. The reason I felt that way was because I had come to know them personally. This was irrespective of whether they were guilty or not. At that time what were on my mind more than anything else were their families. How would they take it? Yet, the law is indeed an ass and justice tends to be blind sometimes.

Having said that; Kenyans must come to the unpleasant reality that the judiciary has changed for the better forever. A few years ago, it was unthinkable to find guilty top officers in the government let alone throwing them in prison. It was that culture of impunity that allowed Golden Berg thieves to stroll our streets to this day.

The jailing of Nabutola and Ongong’a should send a chilling message to those public figures that from time to time are tempted to flout procurement rules in favour of their friends, family members or influential people with connections in high places. If you do their bid, they will take the loot and leave you with a baby in your hands.

The circumstances under which Nabutola acted the way she did is very typical of public officers behaving and making decisions where the Head of State is involved. In those circumstances top civil servants are eager to put their best foot forward and shine in front of the appointing authority. It is this instinct to prove oneself that leads to rush decisions that end up being costly to the officers concerned if by bad luck one hawkeyed officer who expected to benefit from the windfall goes away empty-handed. Such disgruntled officers end up becoming whistle blowers to punish the beneficiaries.

I have this eerie feeling that the Nabutola jailing is a tip of the iceberg- a pointer to what is likely to happen to more high profile cases pending before the judiciary. It also illustrates that the judiciary is slowly clawing back its power and independence it lost under the KANU regime.
It all started with Justice Ombija early in the year giving a ruling against President Omar Bashir. Despite Bashir’s ranting soon after the judge ordered his arrest upon his coming to Kenya, that ruling has never been overturned despite government’s feeble attempt to appeal the ruling.

Then just a week before Nabutola’s verdict came up, another verdict was passed against the former permanent secretary in the Ministry of Home Affairs. He was accused of fraudulently signing off a tender to a ghost company known as Anglo Leasing to print the new generation Identity Cards for the department of Immigration and Registration of Persons. Unlike Nabutola and Ongonga’, he got away with a lighter sentence of a three million Kenya Shillings despite the fact that the tender was worth Ksh 7 billion.

The reason why big guns must have sleepless nights is because there are many cases pending before Kiraiko Tobiko that are ready for prosecution. These cases are mostly a backlog from KACC that Amos Wako had failed to prosecute for several years.

By the look of things, it would appear as if Chief Justice Willy Mutunga is not keen on following in the footsteps of Justice Evans Gicheru. He is keener to leave his own footprints in the corridors of justice considering that he has just four years before he retires. What Mutunga seems to be telling Kenyans is that within four years, he is ready to revolutionize the judiciary beyond recognition such that whoever will follow him will find it impossible to turn back the clock.

For this reason Minister Ali Makwere and Dhaho Godhana must be really weary of incitement cases facing them in the present judiciary. Yes, as we deal with economic crimes, let the courts also deal ruthlessly with war mongers and lords of impunity who have made lives of Kenyans hell on earth.

Had we had a functional judiciary like we do today, 2008 violence would not have occurred. Losers in the 2007 elections would have gone to court rather than to the streets. The Chief Justice would not have conducted a swearing in ceremony before the dispute was dissolved. The authors, planners and executors of election fraud would have been too afraid to commit crimes. Today Chairman Kivuitu and his commissioners would be languishing behind bars as Kenyans went for repeat elections rather than for each other’s heads.

Now that the courts are working, let us conclude Golden Berg, Anglo Leasing, Grand Regency, Triton, land grabbing and perpetrators of 2008 violence. In so doing this, Kenyans who died of hunger and treatable diseases, children who missed out on education due to money that these mega scandals robbed them will at least have been accorded some semblance of justice. The trial of the 5000 butchers of the 2008 violence will surely be a form of restitution to thousands of Kenyans who died and thousands more who lost their limbs, homes and livelihood.