It was distressing to see “Western envoys” enthusiastically praising the President, Director of Public Prosecutions and Directorate of Criminal Investigations over the charging of officials over alleged corruption at the National Youth Service.

“We urge that Kenya’s Judiciary take swift action, consistent with the rule of law, to ensure fair trials and justice,” the said.

This rather condescending statement suggests they have bought into the view it is the Judiciary that lets “criminals” off the hook. The Judiciary can only try the cases brought before it.  They can only convict on the basis of the evidence presented. The DPP says he has “watertight cases” against 64 NYS suspects. To get people convicted, he must convince the court beyond reasonable doubt ― not some far-fetched imaginative doubt, but a reasonable doubt. The last time there was a major NYS prosecution, the court said the evidence was just not good enough.

Far too many people assume if a person goes to court, they must be guilty and the court should convict. But lawyers will tell you of the many times DPP lawyers come to court ill-prepared, or the police have simply not done their work properly. Sometimes people suspect that the “incompetence” is actually deliberate.

BUT WHAT ABOUT ‘ANTICIPATORY BAIL’?

Some people have been saying they are pleased to see the suspects at least spending several nights in Industrial Area prison before trial because they fear they will never be convicted.

It’s understandable. Remember the pleasure many people felt when those MPs and a senator had to stay a night in Muthaiga police station? What happened about that? Well – the DPP said there was not enough evidence and dropped the cases. So did the police do a bad job, arresting people against whom there were no charges or did protests in Narok persuade the authorities not to proceed with prosecutions? Anyway, it is not surprising that ordinary people think that important people do not get convicted, or even prosecuted.

Some problems come because the police, as Justice Mumbi Ngugi once put it, sometimes “arrest first, and seek to investigate later”. The normal sequence of events ought to be the police investigate, decide the evidence points to a suspect, seek the advice of the office of the DPP as to the strength of the evidence, and only then arrest the suspect. They are supposed to be in a position to inform the suspect at the time of arrest why they are being arrested.

Courts ordering bail even before arrest is allowed in India under the Criminal Procedure Code. But it should not be necessary in Kenya. Under our Constitution, accused persons can be released on bail when charged for any offence. In fact, they should be granted bail unless there are “compelling reasons” against it. And the DPP’s office must convince the court not to grant bail, not the accused persuade it otherwise.

I, therefore, first wondered why the NYS suspects, charged in court on a Tuesday, were still locked up by the weekend. The media said their applications for bail would be decided the following Monday. But if they were still in prison, their applications had been refused. On what basis? Then this week, the magistrate refused bail, lecturing them on the gravity of the offences for which they have not been convicted. What happened to innocent until proved guilty? The issue was well argued before the court, and the magistrate ignored the official guidelines on bail, which clarify that the seriousness of the offence is relevant because it may affect the likelihood of the accused disappearing. It does not justify detaining accused to punish them when they have not been found guilty.

Some guarantee of their turning up is supposed to be achieved by asking them to deposit what may be substantial sums of money as security. The most important guarantee is probably the difficulty of disappearing. Bail can also be refused because they are likely to interfere with witnesses, or commit another crime (both of these hard to decide if they have no record of crime, and are really treated as innocent until they are proved guilty). And bail can be refused if the police still need to carry out investigations and releasing the accused may interfere with this.  This really ought to be rare because, as we said, the police are supposed to investigate before they arrest, not after.

The Miguna case showed how determined the police can be not to comply with court orders. The problem is that neither the police, nor, it seems, some magistrates, can be relied upon to apply the Constitution correctly. If this were not the case, the High Court would not find it necessary to grant anticipatory bail. When they do so, the courts will usually also say, “You must respond to the police request to interview you”.

HOW ABOUT COURTS STOPPING PROSECUTIONS?

Similarly, if the police and the office of the DPP followed correct procedures, high courts would not find themselves asked, and sometimes feel compelled to agree, to stop prosecutions. One problem has been the reluctance of magistrates to listen to constitutional arguments. High courts have stopped prosecutions for various reasons including that a criminal case seemed to have been used to put pressure on a party to a civil case about the same matter, or that the accused person had been led to believe that he would not be prosecuted, an understanding that had been violated. Or it might be because the law creating the offence is unconstitutional.

The High Court declared in 2015 that provisions of the Security Laws Amendment Acts creating new crimes were unconstitutional because, for example, they violated freedom of expression or fair trial rights. Again, sections of the new cybercrime law were recently suspended; they too are challenged for unconstitutionality. In these cases, no particular person had been charged with any offence. But if a person is actually charged with an offence that may be unconstitutional, and the magistrate’s court is unwilling to listen to arguments to that effect, it makes practical sense for the accused to go to the High Court. The alternative is to wait to be convicted, then sentenced, and maybe a year later get the appeal heard and perhaps succeed in arguing that there should never have been a conviction at all because the offence was all the time unconstitutional.

THE NYS SAGA

Around 30 people are arrested and taken to court at the same time, having been dragged from their beds in the middle of the night the way one imagines happens in fascist states.

I hope the DPP is right that he has watertight cases. If so, how come it dovetails so neatly with what’s in the media and the President’s protestations about dealing with corruption? It is very worrying when the criminal process seems to be used for political advantage.

The DPP is an independent officer, and makes the decision whether to prosecute, and cannot be directed by anyone else. It is also a matter of concern when a newspaper says: “With Uhuru’s support, DPP Haji goes for big fish”. The DPP should not seek the President’s support. Do the Western envoys realise this? And the President has other things to do: He needs to be considering how government policies and actions may be encouraging corruption, and how to change this.

Too often, grand gestures are made about dealing with crime, especially corruption. But convictions depend on painstaking and detailed investigations, and presentation of the evidence, with all the t’s crossed and i’s dotted. If that has been done then the courts will surely play their part. But playing their part does not mean ignoring the constitutional rights of accused persons, including to bail, perhaps trying to show how tough the courts are being. It is at times like this that the judges need especially to be independent and to be seen to be so.

By JILL COTTRELL GHAI