The doctrine of separation of powers presupposes an ecosystem where the three arms of government — Executive, Legislature and Judiciary — work independently but complement each other.
The current not too subtle standoff between the Executive and the Judiciary over graft and other criminal cases over acquittals and bail conditions threatens to degenerate into mutual antipathy.
Both the Director of Public Prosecutions (DPP) Noordin Haji and his Directorate of Criminal Investigations (DCI) colleague George Kinoti — who in the court of public opinion get flying colours in the fight against corruption — are sending more than just anger as courts stick to demand higher evidential threshold to convict.
Chief Justice David Maraga has insisted the Judiciary, in a complementarity role, is also in the trenches in the battle to break the back of graft but never tires of reminding that for conviction evidence is non-negotiable.
However, the exasperation by the DPP and DCI has more subtly been expressed by the President and last Thursday echoed by Opposition chief Raila Odinga.
They are probably not meant as stunts to ratchet up pressure on courts. But if destabilising or pressuring the Judiciary is antithetical to the dispensation of justice, there are nonetheless creeping apprehensions over court rulings with regard to graft.
It is also true that the Judiciary will loathe being perceived as if it has an axe to grind with the Executive or the Legislature for whatever reason (remember the Judiciary revisit threat following Supreme Court ruling overturning presidential poll in 2017, the Deputy Chief Justice Philomena Mwilu arraignment saga and the sliced allocations by Parliament to the judiciary).
But most Kenyans are alive to the trend by the Executive to frequently fret or find some court rulings irritating, not just those with political reverberations but also those dealing with suspects indicted on national security matters.
True, the law is the law and we are constantly reminded that the Judiciary acts as an anchor to constitutionalism and democracy.
Our Judiciary has, since the 2003 radical surgery, been recovering from broadly negative perception, only gradually gaining a measure of public trust and confidence. Previously, a cynical perspective was that it was an epitome of deficiency in integrity and often got likened to an auction house where justice went to the highest bidder. Which is why court clerks through manipulative and conniving lawyers to date tinker with case files to derail justice.
In the past, the Judiciary was also seen as lacking the backbone to stand up to political machinations. Those days are clearly behind us. In 2017, it shocked the world by nullifying presidential election results.
But as much as courts must adjudicate impartially and are not in the habit of allowing whims and retributive impulses to distort dispensation of justice, it’s also crucial that it becomes sensitive to the accusations and emerging perception of it being the weak link in the fight against corruption.
Ordinary Kenyans are clearly not schooled in jurisprudence, legal fundamental and processes and the broad underpinnings of justice. Nonetheless, in Wanjiku’s anxiety to see the graft tide stemmed, she must be forgiven for finding inexplicable and incomprehensible, court rulings where powerful individuals facing grave charges, including murder, are granted bail and return to occupy influential offices.
The outrage over brazen looting running into hundreds of billions of shillings from public coffers, — the National Youth Service, the maize scandal, the sugar, the Ruaraka land, the NHIF saga, the Standard Gauge Railway compensation scandal, the Kenya Pipeline Company looting et al — do these fall under fiction category in the Auditor General’s reports and investigation findings?
Graft cases, at best, take an eternity to conclude but more accurately, just fade away. High-profile murders are committed and victims buried and following initial flurry of investigations, the trail invariably goes cold. There is a compelling need for introspection on whether prosecution agencies are so hopelessly inept and hamstrung in the light of court rulings.
The question which must be posed is whether the Judiciary may have overstretched the presumption of innocence even in cases where suspects admit to carting away cash in sacks or confess to supplying air yet are paid tens of millions?
How is it that middle-level public officials whose earnings is common knowledge can have in their accounts cash that rivals some government departments and without proof of sudden massive inheritance?
Do the apprehensions by Kinoti and Haji hold any water? Is the presumption that the Judiciary and its structures calibrated to uphold justice and thus arrest the erosion of our ethical ecosystem a fallacy?
Without convictions or more stringent bail terms, the agencies leading the fight against graft are bound to feel disincentivised and ultimately their efforts bound to falter. That is why the Judiciary is finding itself in the eye of the storm.