A fundamental misunderstanding of the role of a lawyer, or an advocate of the High Court, leads to ridiculous presumptions about the causes of, and solutions to, graft. A cornerstone of any constitutional democracy, indeed of any democratic arrangement, is the presumption of innocence and the right to a fair trial. In non-democratic arrangements, frequently to be accused is to be convicted. A trial is but a rubberstamping of a conclusion reached in other quarters.
In recent days the Cabinet Secretary for Devolution and Planning has resigned her office and has had her home raided by agents and officers of the Ethics and Anti-corruption Commission in search of proof of her hand in the financial scam that has engulfed the National Youth Service and the Ministry. She has pleaded innocence and innocent she is unless she is convicted by a court of law. She has done what any person confronted by the spectre of legal proceedings against them would do: she has retained the services of a lawyer.
In the court of public opinion, however, she and her lawyer have been painted as two sides of the same perfidious coin. Public opinion has already convicted her of the alleged crime of graft and her lawyer has been branded as the master of cover-ups, out to ensure that his guilty client never spends a night in gaol and that she continues to enjoy her ill-gotten wealth. Some of her most vocal accusers are human rights defenders, sworn to fight to ensure that Kenya's Bill of Rights protects the weak and the powerless. They seem less concerned about the rich and powerful as if the by the acquisition of wealth or power somehow means that the Bill of Rights no longer applies to the rich or the powerful.
It is, therefore, surprising that they would, first of all, accuse her of having committed a crime without a shred of proof and, second of all, wish to deny her the services of a lawyer of her choice when their accusations have exerted such an enormous pressure that the forces of law and order have began to pursue the possibility of charging her with a crime. Simply because they are convinced of their own moral superiority in relation to the former Minister, they are prepared to ignore her human rights because they believe she is beneath their contempt. They fail to realise that they are advocating for that which many of them have challenged: an unequal application of the protection of the laws.
Gibson Kamau Kuria, speaking during one of his submissions before the Bosire Commission investigating the Goldenberg Affair, once declared that if the Devil was in need of legal counsel, he wouldn't hesitate to offer it. He was right. The lawyer represents the legal interests of both the innocent and the guilty; it is his job to ensure that the system of justice operates within the law. A judicial process is equally about the proper application of the law, the assessment of lawfully obtained and verifiable facts and the arrival at a just outcome. Justice, sometimes, is never fair. That is why we have left the business of determining just outcomes to judges and magistrates and not to impassioned, enflamed lynch mobs, whether the mobs are tapping away at keypads or roaming the streets with pitchforks and nooses.
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