Conviction of accused persons is not the inevitable end of criminal proceedings. Justice is. Hence, the aphorism, criminal justice system.
In adversarial systems, such as Kenya’s, the prosecution must place before a court, evidence of such incontrovertible quality that satisfy specified thresholds regarding the commission of a crime by an accused person.
Only then would a court hand down a finding of guilt, convicting an accused of the crime in question.
Recently, when the International Criminal Court’s trial chamber handed down a not-guilty-verdict in the Gbagbo and Bemba cases, protestations suggesting that the non-conviction of these high profile accused persons, would sound a death knell to international criminal justice, were voiced by interest groups.
However, this is far from the truth, if the authentic character of criminal justice system were to be considered.
A criminal justice system is not voided by an unsuccessful attempt at prosecuting an individual. Rather, real jeopardy confronts the system, when courts are harangued, cornered and pressured by interest groups to deliver a specific outcome.
Judicial systems are not conveyor belts whose net outcomes must be to secure the conviction of criminal defendants no matter the quality of charge or veracity of evidence. This would be the true character of a lynch mob. Rather, courts are independent institutions, established to facilitate public order in society.
Consequently, persons charged with crimes should be subjected to a judicial process where they enjoy equal protection of the law and due process guarantees, including the right to bail.
The history of criminal proceedings in Africa caution against attempts to demand pre-determined outcomes from judiciaries. The dark days when judiciaries were mere appendages of Executive branches must not be allowed back. It is for this reason that any right-thinking person must be concerned about the ongoing campaign to vilify the Judiciary, seemingly underway in Kenya and a number of African countries.
This trend is more worrisome given the recent expulsion from office of the Chief Justice of Nigeria, a mere two months to that country’s election; and, in Lesotho where Chief Justice Nthomeng Majara was recently indefinitely suspended from office by the Executive.
In the Kenyan situation, therefore, it seems odd that a media campaign to attack the Judiciary has been sanctioned; with high profile opeds attacking specific judicial findings as a key tool. Social media has been awash with trending hashtags such as #RogueJudiciary providing a platform to evidence alleged flagrant disregard of the law by courts and calling for judicial reform.
Conversely, these tools are designed to perhaps demand self-correction on the Judiciary’s part. The efforts also no doubt seek to win hearts and minds of Kenyans on the merits of reforming the Judiciary in the cast desired by these actors. Purveyors of the anti-Judiciary narrative appear to base their attacks on perceptions that the Judiciary is not playing ball in the fight against corruption and the false premise that this war will succeed when the judiciary hands down convictions to every person charged with corruption.
This judicial vilification campaign thus rests on disturbing premises considering our constitutional order.
Judicial processes by design are intended to provide oversight on the exercise of prosecutorial powers by the Office of the Prosecutor in the case of ICC or the DPP in Kenya. Only when a prosecutor, whose incentives are to secure conviction in each and every case confronts the court with evidence of an accused’s culpability, satisfying legal thresholds ought a conviction to follow.
Equally, when shoddy investigations are used to found a charge and sustain proceedings, courts, whether ICC, Kenyan or Nigerian, must come out in the name of justice and fairness to pronounce the accused not guilty and allow them to walk into unencumbered liberty.
This does not mean that courts have a carte blanche to operate in complete disregard of the imperative to dispense justice in a way that rids society of criminality. In so doing, courts must employ all tools at their disposal to ensure vigorous oversight over its own systems, processes and personnel, so that she will be held blameless by those who come before its hallowed chambers.
Courts must dispense justice expeditiously, ensuring that any unscrupulous tactics used to defeat the ends of justice or buy time for post-hoc efforts to weaken cases, often deployed by criminal masterminds, are not permitted.
Dissatisfaction with a judicial finding is morover remediable. Appeal processes to Appellate Courts or Supreme Court are available. There is no reason therefore, to pursue a pogrom to dismantle the Judiciary only because the institution has not provided the quick fixes needed by political actors.
Sing’Oei is a Legal Advisor, ODP (views are personal)