Malawi’s Constitutional Court took an unprecedented and widely celebrated step in February. The previous May, President Peter Mutharika had stumbled his way to re-election in a vote rigged in a wholly unsophisticated manner. Ballot papers were found to have been altered with Tippex, a correctional fluid, and the court swiftly annulled the result. With that ruling, Malawi’s top court demonstrated the judiciary’s independence from the executive, a vital indicator of a healthy democracy.
The international news media were quick to praise the bold move, reminding us that this had only happened once before in Africa’s history; in Kenya. In 2017 the Kenyan legal system was similarly lauded when the Supreme Court nullified the election there, citing irregularities and mismanagement by the electoral commission as President Kenyatta sought a second term. But the praise was to be short lived.
In the three years that have since passed the courts have further entrenched their status as a mere government functionary. Case after case the judiciary has demonstrated a remarkable capacity to look the other way for those that walk the State House corridors, while the rest languish in jail.
Kenya’s legal history is not one to be proud of, especially when it comes to holding lawmakers to account. In January Babu Owino, MP for Embakasi East, was released on bail having spent just a week in prison after allegedly shooting a DJ in the neck at Nairobi’s B-Club.
He has since remained active on the political scene, publicly working with the President on Kenya’s response to the covid-19 pandemic. He will not likely spend another night in a prison cell, something his colleagues clearly attest to. “Babu Owino has already served his sentence”, a fellow MP conceded.
Once bail has been posted, legal proceedings can be strung out indefinitely. Chris Okemo, a former energy minister, and Samuel Gichuru, the ex-head of Kenya’s state power utility, managed to drag out a case seeking their extradition to Jersey on corruption charges for nearly nine years before the Court of Appeal quashed the case.
Perhaps most widely broadcast has been the case of Nairobi Governor Mike Sonko, who was arrested last year on corruption charges alongside Henry Rotich, a former finance minister. Sonko’s trial was bogged down in procedure before it started. His pre-trial conference was delayed by the prosecution’s failure to fully disclose all the evidence. Media scrutiny and public attention of Sonko’s case have forced the courts to make some changes in how they conduct trials, but they’re nothing to get excited about.
Nevertheless, not all are treated equally before the law. While for some, trials are prolonged for years on end before they’re quietly swept under the rug, for others the force of the law is swift and brutal. Last year businessman and animal conservationist Humphrey Kariuki was set upon by the Kenyan Revenue Authority and Directorate of Criminal Investigations with frightening speed, accused of selling substandard alcohol and tax evasion, charges he vehemently denies.
While the prosecution’s case against Kariuki remains speculative at best, we cannot yet say for sure what his fate will be. But what we can say is that the ferocity with which his case was pursued demonstrates the system’s ability to work quickly (though perhaps too quickly in this instance). The same cannot be said for politicians that find themselves on the wrong side of the law.
After the Supreme Court took that momentous decision back in 2017, Duncan Otieno, a well-known legal analyst, said Kenya had “restored the integrity and credibility of the judiciary”. He is tragically wrong. The country will only find that once it starts to treat everyone equally before the law. Until then, it will continue to be viewed with the suspicion it rightly deserves.