The indispensable role that the Kenyan judiciary, especially the higher judiciary (High Court) plays in the maintenance, support and valorous defence of corruption in Kenya, cannot be overestimated.
Corruption could not and still cannot think of an ally more loyal, more steadfast, and more reliable, to jump in at its beck and call whenever necessary.
True to the spirit of "sector-wide" approach (elegantly vested from the hands of GJLOS, and turned against its inventors), the judiciary's operations in favour of corruption are manifold and multi-pronged, but that would be the topic for a more thorough article than I can write right now. Rather, I want to single out only one very specific and very telling incident. It is to Mwalimu Mati (formerly of Transparency Kenya) that I am ingratiated for making the case public; the KACC has not commented on it in its press releases (maybe due to shyness or uneasiness, maybe due to a wrong understanding of the quaint and increasingly dysfunctional "sub judice" rules of Common Law tradition), and the Kenyan print media once again seem to be united in a conspiracy of silence.
As we know, and as the director of KACC was and is wont to say, "corruption fights back". What else would you expect a hydra to do? For we know that heroically cutting off some of her many heads is not enough, as the antiquity tells us, one must also cauterize the stumps with fire, and exactly that was not done.
Indeed, numerous of these heads are now busily hissing and slithering back to join their body again (I'll just name Justice Tom Mbaluto as one example, who was regarded even before Ringera's purge as one of the more corrupt judges within an already rather tainted judiciary).
One of the well-known champions for corruption - in several judgements where she had a dirty hand in the game - is Justice Roselyn Wendoh (sworn in office as High Court judge on 28th October 2003, after 21 years of service through the rank and file. Beginning as a District Magistrate Grade II in Kenya on 19th August 1982, Roselyn Wendoh, now 49 years old, previously rose to the rank of Chief Magistrate, hearing both civil and criminal cases. She is also spelled Roselyne, Roseline, Roselinne, or Wendo).
In an utterly astounding and perplexing preliminary decision - which does not seem to be tainted with basic understanding of the law, or endowed with the ability to read a statute -, she granted leave to a contempt of court action against a magistrate and three KACC officers, because they allegedly did not comply by a previous order by the selfsame justice Roselyn Wendoh from 20th February 2007 (this case is the national facet of the Anglo Leasing scam). She granted leave, though this endeavour of Alldean Satellite Networks (applicant) most obviously does not even have a faint reflection of a prima facie case. While a magistrate can err (and not infrequently does so), it is through judicial appeal that such an error must be corrected, and not through criminal prosecution. Mwalimu Mati explains in some more detail why this is so, and his very same legal argument was also used by advocate Otiende Amollo in an unrelated recent HIV case (curiously, this case is also heard before a bench comprising Justice Wendoh).
Like many wananchi Kenyans, I have lost faith in the judiciary. Also and especially after 2003. One must still do one's duty I understand, and such sense of duty in spite of adversity and in spite of impending fruitlessness is probably what this country needs (who was it who stated that Sisyphus must be imagined as a happy man?). But I wonder increasingly what sense it should make to shun corruption in one's private life, to work hard (and often, far too often overtime), to do one's own civic (and maybe professional) part in the fight against this hydra that is choking our country to death, if all efforts are being counterpoised and frustrated by other players in this game, be they located in the Attorney General's Office (true, most corruption cases of petty offences - which make up 90-95% - sail through easily and are prosecuted, for it's only the big and well-connected cases where the AG intervenes in favour of the culprits and shields them), or be they located in the judiciary, and there notably not in the magistrate level anti-corruption courts, which work quite decently, but in the High Court.
It is good to notice that KACC (meaning its leadership or directorates, who frequently are perceived as integer and sincere, but too aloof and far too distanced from the daily nitty-gritty work of their peons) here loyally stood behind their officers and investigators when those were attacked or impeded, be it in the case of the four AP policemen roughing up a team that was to arrest the DO of Kikuyu, or in the almost - but not quite - comical case of the Hon. Reuben Ndolo first falling back into his old boxing habits, and then running away from the law for the umpteenth time. Both offences have immediately and speedily been brought to court and that was not only much-awaited by the rank and file, but indeed absolutely necessary if one wants at all to uphold morale and team spirit. Also, it has been seen with some relief that the press work of the Commission seems to have become more reactive and more forceful in the last months, whereas in the time before a certain noble spirit of "we shall not stoop to react against any dirty attack" seems to have ruled. But you cannot use an elegant foil in a boxing match (I was tempted to call it a free-style wrestling contest, but one of the two contestants is bound by so many rules, for good reason, that free-style does not seem quite to match it). Strong rules on professional secrecy and confidentiality forbid the KACC employees to comment on any ongoing cases and activities, and indeed even minor breaches and leaks have been perse... I mean prosecuted mercilessly. But it is then all the more important that one can at least feel assured that the spokesman of the Commission will speak out and defend its officers against violence or injust allegations whenever that is felt to be necessary.
Now back to injustice on the bench. In Mwalimu Mati's very noteworthy and knowledgeable website http://www.marskenya.org (I call it so even though I feel that he attacks the Commission unnecessarily often, and often quite injustly too), he even termed it "judicial lynching". In fact, the present leave was granted by Lady Justice Wendoh to an outright and blatantly frivolous application (this one advanced through the white advocate Keith Osmond Esq., who in and by himself it considered one of the better lawyers in Kenya, mostly doing high-cost corporate and commercial work; their main case however is - very fittingly - handled by advocate Amritlal B[hagwanji] Shah, a former Appeal Court Justice who had received his high office in 1994 as a personal gratification by Moi for services rendered as his lawyer, and who was ousted for corruption through the purge following the Ringera report). This is only too characteristic both of the legal ignorance and the ineptness that characterises even and especially our high judiciary - just see the infamous recent Saitoti and Murungaru judgements, both also reviewed in the aforementioned website - and of the spirit of corruption that pervades it into every crook and nanny.
While the corrupt judiciary operates mainly and with great preference through procedural machinations such as leaves to proceed and orders of stay (the former when eagerly accepting frivolous lawsuits against corruption fighters, the latter when obsequiously protecting culprits from impending prosecuting whenever it threatens them), sometimes it has to put its card deck on the table. Such was done in the two cases I mentioned (Saitoti and Murungaru); and as usually, the rotten tiny legal core of the judgements was cloaked and enveloped in endless pages of judicial chatter and empty, pompous rhetorics. In Kenya, the more resounding a judgement is, the larger and the more hollow it can usually be suspected to be - it's a simple law of acoustics.
Let me now utter an educated guess what might be the next case to be tabled before Justice Wendoh (and, of course, to be proceeded in favour of the plaintiff/applicant). One look into my crystal ball (I cheaply bought it from the landlord auction of the remainders of a travelling rural market booth that also used to exhibit a computing goat and a talking head; the goat was made chief auditor of an important parastatal, and the head is sitting in Bunge now) tells me that it will be Dr. Sally Kosgey (appl.) v. KACC and Head of Civil Service (resps.). The (obviously bought, and expensively bought) article in the Standard heralded the pre-announcement for that move.
The labour lawsuit of Jason Maingi (former KACC employee) is also before Justice Wendoh, and there is little doubt how she wants to decide it.
And of course, there still is the infamous case of Joshua Kulei on her desk, which has been stalled. Maybe some secretly dragging negotations between the Kulei financial administration and the judicial bench have not yet been concluded successfully?
As Punch is wont to say to his Judy(ciary): "That's the way to do it!"
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Interested readers may wish to have a longer look at it.