The swift trial of a man caught ferrying a snake without authorisation from the Kenya Wildlife Service has set off an angry storm on social media. The ill-fated ‘snake charmer’ was handed a Ksh1 million ($10,000) fine or one-year imprisonment.
Given the man’s insistence that the snake was for personal entertainment and not for sale, was the sentence commensurate with the crime? Could the judge not have ordered community service at a KWS park?
The man’s fate is not unlike those of hundreds of other poor petty offenders in the country. For chicken thieves, handbag snatchers or shoe thieves justice is swift and merciless.
However, for rich murderers, rapists or corruption mafia, the wheels of justice begin to creak and then come to a standstill.
There is a governor charged with murder of his girlfriend and their unborn child. He is out on bail and is seen at high profile events in the country. As the months turn into years, witnesses and evidence might disappear into thin air.
Suspects in the multimillion shilling corruption scams at the National Youth Service are, too, out on bond as their cases stew without urgency in the courts. We know of governors charged with theft of millions who are out on bond while their cases crawl along the corridors of justice. We have cases of big wigs getting slaps on the wrist for causing death through drunken and reckless driving.
In short, there are as many cases of the rich getting away with murder, literally, as there are cases of petty offenders getting swift and merciless punishment.
When the NARC government came to power in 2002, it instituted what it called a ‘radical surgery’ of the Judiciary, a process which got rid of compromised judges who had helped to shore up the repressive and corrupt Kanu government.
In 2011, another cleaning up of the judiciary was undertaken by the Judges and Magistrates Vetting Board (JMVB) which was established by an Act of Parliament. It was expected that the ‘radical surgery’ and the vetting by the JMVB had not only got rid of the rotten apples within the Judiciary, but that the two processes had created a framework for the re-establishment of a culture of diligence, fairness, integrity and commitment to jurisprudential excellence in the Judiciary. It was hoped that the Judiciary would interpret law not only in accordance with the constitution, but also in a way that was cognisant of the social, economic and political context of the country.
The expectation was that the Judiciary would not only adjudicate cases expeditiously and without fear or favour, but that it would also be “activist” within reasonable parameters in order to advance the country’s social, economic and political aspirations as outlined in the constitution.
What we see, however, is a Judiciary which is structurally and ideologically hostile to the poor, and which makes rulings that are not in line with the expectations of the moral majority.
The judiciary has been “activist” in interpreting both statutory and constitutional provisions in ways that protect the rich.
For instance, we have had situations where anticipatory bail is granted to stop the arrest of well-connected thieves. We know of cases where injunctions are given to stop police from investigating potential criminal conduct of wealthy individuals.
Recently, we witnessed a curious interpretation of law when a politician on an attempted murder charge was released on a cash bail to be paid by instalments. The poor ‘snake charmer’, on the other hand, was not given the option to pay his fine by instalments.
Kenya can develop its own jurisprudence, sentencing and bail guidelines unique to its sociopolitical context.
As an example, Japan kept Carlos Ghosn, former Nissan CEO, in custody for months before releasing him on extremely strict bail conditions. In Kenya, a person of his standing would have been released quickly while his case slowly ground to a halt in the courts.
In the US, drug traffickers can be detained without bail because they are presumed to be a danger to society. The reputation of Kenya’s judiciary as being amenable to power and money encourages a sense of impunity among the rich and powerful.
Chief Justice David Maraga is an honourable gentleman, but the judiciary needs a CJ who is not only a practitioner of law but also a scholar of law and how interpretation of law influences national culture and development.
We need a Kenyan Thurgood Marshall or Sir Thomas More as Chief Justice.
Tee Ngugi is a Nairobi-based political commentator