“A profession’s most valuable asset is its collective reputation and the confidence which that inspires…the reputation of the profession is more important than the fortunes of any individual member…”[1]
Abstract
An efficient justice system is one which inspires the public confidence in its integrity, impartiality and independence. This Article is a brief commentary of the judgement delivered by Justice Jessie Lesiit in the Willie Kimani Murder case and its implication on the independence and integrity of the Kenyan Courts.
This is an original work by the author and has not been published elsewhere.
Introduction
A fair and independent judiciary is a cornerstone of any democratic system of governance.[2] Judicial independence is also critical to maintaining the integrity[3] of the judiciary and a critical component of the principle of separation of powers.
Baron de Montesquieu argued that despotism is the greatest threat to any government and suggested that the best way to prevent this was through separation of powers whereby different bodies of government exercised legislative, executive and judicial power, with all these bodies subject to the rule of law.[4]
Article 160 of the Constitution of Kenya 2010 expressly guarantees that in the exercise of judicial authority, the judiciary shall be subject only to the Constitution and the law and shall not be subject to the control or direction of any person or authority.[5] Principle 2 of the UN Basic Principles provides that the judiciary shall decide matters before them impartially, based on facts and per the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect from any quarter for any reason.[6] The African Charter on the other hand guarantees obligates state parties to guarantee the independence of the courts.
For the longest time in Kenyan history, Judicial independence has been a myth. During the era of colonialism judges served at the Pleasure of the Crown and would not apply a mind of their own. They were essentially a civil service, beholden to the colonial administration and rarely stood up to it. Although the independence constitution protected judges from executive power, the ingrained habits of judicial subservience to executive tyranny proved hard to die. Judicial independence remained an elusive concept in Kenya until the promulgation of the 2010 Constitution.[7]
Although the Constitution of Kenya 2010 is a transformative constitution that aims to safeguard the principle of separation of powers and the independence of the judiciary,[8] the Judiciary has faced many set-backs post the new constitution dispensation aimed at curtailing its independence. Some of the notable setbacks include: refusal by President Uhuru Kenyatta to appoint 41 Judges to the superior courts as recommended by the Judicial Service Commission (JSC) despite being ordered by the court; refusal by the Government to obey court’s directive to allow Miguna’s return the country after his forceful deportation to Canada; and refusal by the Government to restore Peter Kariuki (Former Kenya Airforce Commander) to his rank.[9]
However, that the Judiciary has been flexing its muscles in the recent past in a bid to assert its Independence and free itself from the shackles of State capture. Some of the notable decisions that revive Kenyans’ confidence in the judiciary include: the Supreme Court annulment of the 2017 general election on the basis that it failed to adhere to the dictates of the Constitution; the Supreme Court ruling on the Building Bridges Initiative, declaring it unconstitutional; and the recent High Court’s ruling on the murder of Lawyer Willie Kimani.
Factual and Historical Background underpinning the case
Willie Kimani was killed in the course of performing his duties as an advocate. Until the day of his unfortunate demise, he was working with the International Justice Mission (IJM). Kimani was passionate and competent in investigating and documenting cases of police brutality.
Josephat Mwendwa had fallen victim of police brutality and malpractice. In particular, he had sustained gunshot injuries in the hands of a police officer which caused him to lodge a complaint with the Independent Policing and Oversight Authority (IPOA) in a bid to get justice.
On the material day, Willie Kimani had attended the Mavoko Law Courts to perform his obligations as a defence attorney. After discharging his duties, he left the court premises in the presence of his client (Josephat Mwendwa) and his tax driver to attend to his daily duties. While on transit, they were kidnapped and later unlawfully detained before subsequently being killed.
The matter of mysterious and enforced disappearance of Willie Kimani, Josephat Mwendwa (3rd Applicant) and Josephat Muiruri (4th Applicant) was lodged at the Criminal Division of the High Court at Nairobi and later transferred to the Constitutional and Human Rights Division of the court. Kenyans, public and private sectors, and the international community as a whole placed their faith in the Court to make a sobber judgement on the grave matter before it.
In a country where rogue police are accustomed to getting away with murder and other crimes, it is no doubt that the Judicial process is always perceived as a mere formality with no probability of success. In Kenya for instance, the Human Rights Watch’s report of 2020 documented eight (8) extrajudicial killings in three (3) weeks between 25th December 2019, and 17th January, 2020. The report titled “No letup in killings by Nairobi Police” revealed how police officers in Kenya cover their tracks after shooting civilian at will-walking away with slaps on their wrists. The report states that police use tricks such as tampering with the crime scene, failing to report the killings, hiding bullet casings, and preventing the family members from filing report, in order to get away with their crimes.[10]
In a separate article posted in 2021 on the online nation magazine, research had indicated that only 12 of the registered 18,166 complaints against the police at the IPOA had reached conviction since its mandate had begun in June 2012. The rest were stuck in the courts as the wheels of justice ground slowly. The article noted that delay tactics, cover-ups, witness murders and intimidation of victims’ families increasingly made it difficult to successfully prosecute rogue police officers.[11]
In light of the foregoing, it is justifiable to opine that the Willie Kimani Case was instituted when the public had little faith in the integrity of the Judiciary with regards to arrest and prosecution of Police officers (2016).
The Ultimate Judgment and Its Implication
The gradual grinding of the wheel of justice ultimately resulted in the Judgment of Justice Jessie Lesiit on 22nd July 2022. I reiterateverbatimthe words of the Judge at Paragraph 321 and 323 where she stated thus:
321. I have carefully considered the entire evidence adduced in this case by both sides. I have considered the submissions by counsel and the authorities relied upon…”
323. I am satisfied that the prosecution has proved the case against the 1st, 2nd, 3rd, and 5th accused beyond any reasonable doubt. I find the 1st, 2nd, 3rd and 5th accused guilty of the three counts of murder contrary to section 203 of the Penal Code. Accordingly, I reject their defenses, find them guilty as charged and convict them accordingly under Section 322 of the Criminal Procedure Code.
The doctrine of stare decisis is good for stability and predictability. The court in Dodhia v National & Grindlays Bank Limited and Another [1970] EA 195, affirmed the importance of this doctrine thus:
The adherence to the principle of judicial precedent or stare decisis is of utmost importance in the administration of justice in the Courts in East Africa and thus to the conduct of the everyday affairs of its inhabitants, it provides a degree of certainty as to what is the law of the country and is a basis on which individuals can regulate their behavior and transactions as between themselves and also with the State. There can be no doubt that the principle of judicial precedent must be strictly adhered to by the High Courts of each of the States…
However, some precedents are bad precedents. In the present matter, the High Court boldly refused to be bound by bad precedence and a culture of intimidation where arguably, the outcome of a case is dependent on the societal or economic status of the accused(s) or the complainant(s) in its strict sense. The court bravely affirmed its independence and integrity by reaching a determination on the basis of facts and evidence before the court.
In summary, the judgment of Justice Lesiit exhibits significant level of maturity in our courts. This has revived and rejuvenated the public confidence in the integrity of the Judiciary. The Ruling paints a bright picture of an impartial court that is ready to dispense justice without fear, hesitation or intimidation; an independent, just independent and integritous court.
Conclusion
I wish to conclude by making reference to Ephesians 4:14 which states as follows:
“Then we will no longer be infants, tossed back and forth by the waves, and blown here and there by every wind of teaching and by the cunning and craftiness of people in their deceitful scheming.”
[1] The Mater of the Rolls, Bolton v The Law Society [1994] WLR 512.
[2] Annual Report of the Delaware Judiciary, “Why a Fair and Independent Judiciary Matters,” (2007).
[3] ICJ, “Statement on State of Judicial Independence in Kenya: Threats Intimidation, and harassment of Judges and Magistrates),” (25th October, 2021).
[4] Baron de Montesquieu, The Spirit of the Laws, (1748).
[5] Article 160(1), The Constitution of Kenya, 2010.
[6] Principle 2, Un Basic Principles.
[7] Patrick Gathara, “The Judiciary and the long fight to defend Kenya’s constitution”, 12th June, 2021.
[8] Constitutional Petition 557 of 2017.
[9] Jillo Kadida, “Court orders disregarded by the State”, Star Online Magazine, (29th August, 2020).
[10] Sigomba Ramadhan, “How police get away with murder”, The Standard, (26th February, 2020).
[11] Tonny Omondi, “Kenya: Why Rogue Police Officers Are Getting Away with Murder”, The Nation (Nairobi), 29th October, 2021.
Article by: Mafumbo Allan Wafula