Babu Owino and the broken system

The fact that Babu Owino was not going to be charged with attempted murder was written on the wall. It was a matter of when, not if. He won’t be the last senior official, politician or celebrity to walk free after committing heinous crimes. 

As things stand, criminal politicians have already been drafted into the ‘next government’ to continue the agenda of impunity despite committing murder, rape and being convicted of corruption. I am talking about Governor Okoth Obado, MPs Aisha Jumwa and John Waluke, to name a few. 

It is not their fault that they and their families can be so assured to show the rest of the country the middle finger. Our warped justice system and corrupt political parties make them believe they can get away with murder literally and they are. The legal system in Kenya has proved itself once again it is there only for the interest of the well-heeled in society and not the citizens. 

The bizarre reasoning given to acquit Babu Owino; in that he had entered a deal with his victim, defies principle of natural justice, i.e. no one should be a judge in their own case. To think the ODPP’s office had the audacity to abrogate on its core legal duty just to save an MP from prison leaves a lot to be desired. 

The decision made by a magistrate to set Owino free on bizarre reasoning should have riled the ODPP’s office, the judiciary, JSC and the Law society but their silence just confirms how much these offices are part and parcel of obstructing justice in favour of the ‘big fish’.

Capital offence is a responsibility of the State (i.e. ODPP) to charge and not the victim. Secondly, restorative justice comes after the punishment has been spent to try and remedy the situation for the victims and their families. 

The recent case worth noting is that of former South African Paralympian, Oscar Pistorious, who is due to meet the family of the girlfriend he allegedly murdered; after serving his jail term and not before. 

Miscarriage of justice

Oscar had both domestic and international influence to circumvent justice, but South African law stood firm and made sure that he was punished for his crime.

The two-tire legal system that Kenya runs has led to unimaginable miscarriage of justice over the decade. 

Many citizens who find themselves on the wrong side of the law or even on the right side of it for that matter have faced severe punishment within a system that moves at a snail’s pace, and hell bent on bribery within its courts and police stations. 

Money talks and indeed it has spoken very loudly for those with influence in Kenya. It lends credence to the adage that it is cheaper to buy a judge in Kenya than it is to hire a lawyer. 

As a result, those that have been quickly judged and punished have tended to be of lower cadre in society. 

The new management brought in to clear the mess at Kemsa, unsurprisingly took the broom to the junior officers while the big looters got away unscathed. 

Promises have been made that the ‘cartels’ behind Kemsa will one day be punished. Only a Kenyan fool would believe such a statement given the fact that so much time is being wasted pushing files back and forth between the relevant agencies to buy time and kill the scandal. 

In the meantime, the junior officials are being taken to the cleaners to pay for the sins of their thieving bosses. Rio Olympic games saga was decided the same way when the senior officials with fiduciary duties were let off lightly and their juniors left to rot in prison. 

Corruption leaning system

Kenya Power has experienced a purge in the medium to lower ranked officials to throw the rest of the country off the scent of the big looters. The list of scapegoats goes on.

Scapegoating has become the modus operandi of fighting corruption in Kenya. But is it the most effective? Clearly not. Had it been so, we won’t be speaking of corruption after nearly 60 years of independence. We would be letting the Singapore that African leaders keep admiring chase after us and not Africa after it.

The judges have a wriggle room to set a precedent but not to re-write the constitution. The role of making laws lies with Parliament. How a magistrate could have so much power to halt a serious crime and arm-twist the ODPP in favour of MP Babu Owino could only be drawn from a well of impunity that keeps watering our corruption fields. 

If there is any fairness, then every serious crime in the country needs to be reviewed so that offenders now and in future would be given similar opportunities as Babu Owino to have the chance to pay for their crimes in material form. 

The golden rule in corruption leaning system such as ours should be to charge, punish and then restore faith in society through remedy.

Ms Guyo is a legal researcher. [email protected]. @kdiguyo