Monday, May 13, 2013

The Goldenberg Affair and Judicial Reforms.

Kamlesh Mansukhlal Pattni, also known as Brother Paul, is a fascinating man. For twenty years, by some accounts, he has "romped through the Judiciary" using chicanery, bribery and fraud to keep his hide out of the loving embrace of the wardens at Kamiti GK Prison. Some members of the Judiciary are accused of being his footstool, bending to his every whim each and every time he presents himself in court on one cause or the other to perpetuate his continued liberty. Mr Pattni is accused of robbing the Government of Kenya and, by extension, the people of Kenya blind. The sordid tale of the Goldenberg Affair has been told and retold a thousand times over. It was even the subject of a Commission of Inquiry and featured prominently in international litigation. It continues to boggle the mind of keen watchers of Kenya's administration of justice machinery why Mr Pattni is a free man. I believe I have the answer.

First, from the outset, let it be known that Mr Pattni is yet to be convicted of any crime. For twenty years the State has attempted to prove that Mr Pattni was the spider at the centre of the web that became the Goldenberg Affair. Second, despite the findings of the Bosire Commission into the affair, there has been a singularly spectacular lack of will to prosecute him in the manner required. Third, and most important, Mr Pattni has proven to be quite the intelligent and clever quarry. He must have studied the criminal and civil law of Kenya with a determination that is singularly lacking in the half-dozen or so prosecutors and private-practice lawyers who have attempted to hold him to account in one form or the other. He has managed to find loopholes and gray areas in the law of Kenya that have contributed to his string of successes in the corridors of justice.

In the decades that the Goldenberg Affair has occupied the minds of keen watchers, Mr Pattni has become an expert at the civil and criminal procedure of Kenya. Bernard Kalove, his lawyer, is a capable advocate for his client. But I believe that it is Pattni who has the better grasp of the ins-and-outs of the law. His timing, as in everything else he has been embroiled in, has been spectacular. He has not just exploited the loopholes and gray areas, he has also managed to turn a profit at every turn. Not Mr Pattni for the subtle approach; he has wielded the sledgehammer of the law to get things done his way. Every calculated move he has made in the past two decades has not only been designed to protect his liberty, it has also contributed enormously to his great wealth and destroyed those who would seek to destroy him. If he weren't considered the most odious man alive, he would be celebrated as a folk hero who has bested the mighty Kenyan State and his legions of enemies.

Those caviling at his rare successes miss the point. When they demand that judges and magistrates be investigated for making rulings that favour the businessman, they betray the fact that they have failed to understand the facts. And they refuse to admit that the judicial reforms currently successfully underway are only one half of the equation. The other half comprises police reforms and reforms in the prosecution services of the State, both of which leave a lot to be desired. If we accept that the evidence exists to convict Mr Pattni of the litany of charges that face him, then we must also accept that the reason he is yet to set foot behind bars for his crimes is because our police and prosecutors are out of their league. While we may abhor the manner in which he has exploited the law to his advantage, we cannot deny him the right to do so, even when it makes the bile in our stomachs rise up with such putrid vengeance. We must instead ask why the State, in its many manifestations, has failed to lay a glove on the cherubic face of Mr Pattni. When we give satisfactory answers to that question, then, perhaps, we may begin to reverse the losses that the State has suffered at his hands.

But it could be that the rot is too deep and that the radical surgery, the vetting of magistrates and judges, and the reforms in the Judiciary have all been cosmetic. It is not suggested that the Chief Justice or his judges and magistrates are corrupt. It is not suggested that the officers of his court are corrupt. It is not suggested that the lawyers involved in the matter are corrupt. And it is not suggested that the police who keep investigating and re-investigating the Goldenberg Affairs are corrupt. But perhaps the sclerosis that hobbled the Judiciary for decades will take a wee bit longer to resolve. The hiccup during the reading of the Presidential Petition judgment points to the slow-burn form of the judicial reforms taking place. It will be a while before Kenyans can honestly stare in the mirror and agree that the Judiciary is a paragon of virtue. That day may be realised when Mr Pattni finally gets his just desserts.

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