Friday, March 18, 2016

The law is not your friend

When you sue me, or accuse me of committing a crime and have me arrested, what exactly do you expect me to do? Roll over and play dead? If you expect me to let you walk all over e with your writs and affidavits and charge-sheets, you need Jesus more than I do because I will dedicate a substantial proportion of my meagre assets to retain the services of the fiercest lawyer I can afford to ensure that your litigious ass stays as far away from as possible. That is the sum and substance of the justice system.

Why is it so difficult to understand this? When a person is arrested and charged in court, the arrest and charge-sheet are not in and of themselves evidence of wrong-doing. There are many steps to be taken before a person is convicted for the crime he has been charged with. None of these steps should be easy to take, otherwise hundreds or thousands of innocents will be rail-roaded through the justice system. I don't find it unusual that every fat-walletted plutocrat will hire a battery of lawyers to prevent their prosecution, because that is what the law allows.

The justice system is not designed to be fair; it is designed to be just and the two are not even close to being the same thing. In a just world, the law is interpreted by an impartial magistrate and a conviction for a crime is either obtained or it is not based on the evidence presented. In a fair world, bad guys get punished. It is not a fair world and wishful thinking will not make it so. Those prone to wishful thinking seem to be ascendant these days and more so in the world of anti-corruption.

Corruption is a white-collar offence and more often than not it is the patient work of auditors, accountants, procurement administrators, systems analysts and other white collar professionals that lead to convictions. In a corruption investigation, unless the corrupt public official is an armed policeman, there are no high speed car chases, but the patient examination of thousands of pages of documents or lines of computer code. In a corruption prosecution, witnesses will only be led through their evidence of the pages they audited or the code they examined. This is not the place for long-winded leading questions beloved of TV legal dramas.

So it beggars belief that knowing what we know of the Kenyan legal system and its Criminal Procedure Code, the Civil Procedure Rules, the Evidence Act and all those other laws, that there are apparently mature Kenyans who believe that to be accused is to be guilty, and that the guilty should simply roll over and play dead as the police and the public prosecutor notch one corruption conviction after the other. Especially in the case of politically-exposed Kenyans like Cabinet Secretaries, Principal Secretaries and heads of parastatals, many Kenyans would like to see them convicted one second after they are accused of corrupt acts forgetting that the law is on these politically-exposed Kenyans' side, not that of the over-zealous accusers.

Now we could alter our legislative and administrative environment be more like the People's Republic of China or the Democratic People's Republic of Korea, where the rule of law, such as it is, is fungible and malleable and requires nothing more than "solid" proof of an offence before the accused in kneeling in a courtyard with an AK-47 pointed at the back of his head, mafia-style. I wonder if those bitching about slow prosecutions would approve of that drastic abrogation of the Bill of Rights just to satisfy their moral outrage at "corruption" because once we start fiddling with the law in that way, the number of classes of offenders will grow such that no one will be safe. Ever.

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