 Thank you for keeping us company and if you're joining us right now. We are talking about the judiciary We're having a focus on the judiciary There has been so many cases in court and we will begin with the right one which has happened today that the the Solaidam tragedy Kind of there will be no justice for them. And then we remember what happened a few days ago about the attempted murder by Embakasi is the member of Parliament. He was released on bail and we also have Joey was in court for allegedly for an allegation of Mada Albi speaking to Nya Chai He's a lawyer and he's in the best place to put things into perspective into what law requires and who is to be given bail and The procedures into how someone is supposed to be bailed out Sending all your comments to all our social media platforms that try to fight for channel. My handle is Art Mourany. Hello. We welcome to the program How are you? Very fine. So thank you for welcoming me back. It's been a while since you were here together. Yes I trust you've been well. It has been a while. Well, I thank God for the opportunity to be able to speak with you guys. Oh, Sam Tell me as a lawyer, do you trust our judicial system? We have made certain great strides as always we have to admit where there are shortcomings and Places where we need to have improvement The judiciary for a long time has been faced to the backlog of cases and these are things that I'm a man She wants to understand in black and white. Why is my case not proceeding? Joey has been remand for the last Several months or so So there have been challenges That are caused either administrative issues or when it comes to decisions that we feel perhaps as citizens That did not go in a manner that was expected in the court of public opinion Then you get an outcry as to the performance of the judiciary So I think there have been several gains in the last few years We've had the judiciary coming out more strongly to pronounce itself on matters of public interest and I think We need as citizens to be more vigilant to ensure that the gains that have been made in the last few years are not eroded by By either the executive or by any other person who is an interested player in the judicial process Yes, at this point do you trust that our judiciary system is okay or just the shortcomings that make it bad? I don't think I'm qualified to give a complete pronouncement, but in my opinion I think there is there is still work to be done and As a lawyer and somebody who's hoping to continue practice within the system I am hoping that we can be able to improve on ourselves as we go the issues of advancement in technology Issues that are very important the issues of access to justice How many high courts do we have in the country vis-à-vis the population and that kind of thing? Unfortunately, we are in a time where the president or the executive has hit the judiciary with a Budget crunch the allocation of revenue to the judiciary has been reduced Whether it is because the entire economy is in a problem or if it is For that firm as a revisiting we do not know but the end result is that you have fewer judges than you need to Man the stations the high courts that we have in the country. We are not able to hire perhaps enough magistrates enough prosecutors Even the judges not have enough research assistants So the entire process becomes one small thing affecting the other and the other and it becomes an issue at the end of the day Okay, now when the DPP nude in Harjit came into office He was sure he's going to bring changes And I want us to begin with this very one story that we have just seen earlier on and I want us to put faces into figures Because of 47 is not just a number Those are lives of people who lost who were lost during the Solaipa tell them when it's it broke its embankment and now the court is saying the Nevasha court is saying They do not have enough Or support from the DPP's office. What are we talking about? First I have not I've I've had the news with the Tremendous Reputation it is a bit unfortunate that this is what we have been used to over the years that Certain persons would be taken to court and they will get out on bail And then the the case would go around the judicial system and finally they'll be acquitted for lack of evidence It is something that we saw all day from the Kano years and unfortunately Persons who are privileged Tend to be seen to get away with this It cannot be that every time it is good luck It seems it is an issue that is systemic that needs to be addressed It is very unfortunate if that was the case but the that The case was dismissed because of want of prosecution because remember that if your if the DPP does not send people to Prosecute the case on behalf of the state which is a chief complainant then the case is going to be dismissed It means that the DPP Did not see or did not merit a case against the persons who had been accused and this is Unfortunate fortunately or unfortunately it is a it is a decision that is lies in the office of the DPP if they decide that They do not want to prosecute this matter They can make an application to court and say we no longer wish to proceed a good example You have is in Taveta where the Nairobi governor sonko has been acquitted of the charges of resisting arrest When he was being arrested in voice So that has been voided the the DPP made an application that they no longer want to proceed So that is when they do that intentionally But when the DPP does not send officers to court Who answer twice or three times then it begs a question as to whether there was really adjoining Intention of prosecuting that matter Because I remember during that particular time They sent it actually all the leaders were they're saying we shall find justice for these people then I'm glad you're kind of bringing it out here that a it comes now to the point of the prosecution So we shouldn't be Pointing fingers other judiciary now we should question on the prosecutor because if they are the people who are supposed to present The the case they didn't do that then we shouldn't be blaming the judiciary One Hillary it is the judiciary or the judicial process is an entire system Let us start from the police officers who make the arrest right When a police officer arrests a suspect then there's somebody called an investigation officer the IO is a person Who's going to write the report? Mr. X has done one two three four five six and there is a way they must prepare the case the case has to be solid and They give that investigate investigation reports to the prosecutor now Back in the day the prosecutor was a police officer as well But now you have prosecutors who are trained advocates of the High Court of Kenya and they're properly Funded so they make the decision not to prosecute the case on behalf of the state Then they take it to court and there you meet the judiciary the judge or the magistrate. So it's an entire process So a case of such great public interest Retigation can be sabotaged at any point if indeed it is an issue of sabotage or an issue of corruption Or maybe just an issue of Incompetence the incompetence could have started with the police officers who deliberately or Out of incompetence did not prepare a proper investigation report Shorty investigations has led so many times to cases being dismissed by judges because the report that was given to them was Shorty so we need to examine our entire system from the start to the finish because sometimes you want to blame the judges and magistrates I saw the other day there was an attack on judges saying so And so is corrupt so and so is corrupt But you ask yourself What can a judge do because judges only make decisions based on the arguments that are raised in court in fact and in law So our system is adversarial which means the judge can only Decide on what you say in court. It's not like in France or in other countries where there's an inquisitorial system Where the judge actively participates in finding out what is the truth of the matter? Our our duty in Kenya is not to find out whether somebody is innocent It's an issue of guilty or not guilty So has the guilt been established beyond reasonable doubt which means that the prosecution has a duty to present a case That is so clear that there's no other option but to find the person guilty or not guilty So we need to examine not only the judges and the magistrates. We need to look at the office of the DPP Are they independent do they have the strength and the resources to mount a proper prosecution case every time are they free from? political persuasion Because so many times you'd find that the decision to acquit somebody or to give bail or to give bonds sometimes is affected by Political pressure you have seen the examples that you've stated certain people like governors We have a governor that this is public knowledge the governor of migore is a murder suspect He was granted bail Joey has a case Same mother case and he's been in prison for the last few months So and there's been that public outcry in In social media as to how do the rules of bail and bond apply and why is it that some people can get this and others cannot I'm sure we're going to discuss in a bit about Babu, you know, and he's an interesting Borned decision which was given by the chief magistrate Francis and I so it's a it's a whole discussion Holistic discussion and I hope that we will get time to discuss this over and over because it's a lot of work from the police to the DPP to the judiciary Apparently we do not have that much time But I'm sure we will point out at fundamental issues but I would like you to respond very fast to the The concern you raised that Kenya is not like any other country Is it about time that we changed our policies that our judges now can be involved in coincitive estates? Kenya Borrowed its judicial system from our colonizers the the British so we practice what you call common old jurisprudence So almost all the countries that were colonized by the British follow this system of the prosecution and the defense in terms of Criminal matters and in terms of civil matters. It's the applicant or the plaintiff versus the defendant stroke Respondent so the issue of the judge is to other majesties this matter is to listen to the case and decide According to the facts that you made in court I mean according to the argument that you made in court the prayers that you have asked for Because you know sometimes it's an issue of what has a people what are the people asked for let me give you a very important example do you know that and These are my seniors by very many years the advocates who are representing me goona When they made an application in court the application which was granted there in Simple terms they did ask for the government to be instructed to allow For me goona's entry into the country They did not ask for the government to be compelled to facilitate the travel into and entry of So they requested for him to be allowed to enter But then they did not ask for the government to be compelled to arrange for the travel to Those are two different issues. So they they are opted to see yes or no So so so the government simply says let him come but it is not our issue to organize for him How he comes? So be good I still stuck because the government has not been compelled to arrange for his travel. Okay, you see So it's an issue again of Within the system how how the orders are made in court. So to answer your question I think it is it is probably something that we can consider because in places like France a magistrate can overlook an issue where an Inexperienced lawyer like myself young lawyer would make a mistake and not ask the right kind of questions The magistrate would come and say I need to ask this on that and find out what is the truth But we can't do that here We need also to borrow a leaf from the other side. No, let us very first look at this We have joey who is in remand. Yes case is murder suspect. We have Baba we know is out Attempted murder and we have me go to governor or call the battle a Suspect of murder these three people How are in different states? But now the two of them here have bills and if you look at their political class, they are people in this country We when you look at joey according to the profile we have in the public domain. He's just a common citizen so then At what point now do we define this one can get bail this one can't What is the measuring standard? The giving of bail and bond which is almost used interchangeably in this country is guided by article 49 of the constitution Which provides that every person is entitled to Bail upon reasonable terms and upon certain conditions being met For as long as the offenses that are involved are not capital offenses. You're talking about murder treason Robbery with violence and attempted robbery with violence Because these are crimes where if you're fined guilty, then you're expected to serve life imprisonment in the alternative of Getting the the capital punishment So as long as that is not the case then you can be able to get bail you can be able to get bond But now the court has the power to be able to release you even as a as the case is ongoing And this is what you call now judicial discretion So you ask yourself why has it been offered to particular people and why it has not been offered to particular people What are the guidelines that supposed to Ensure or regulate the giving of bail and bond the judicial office is supposed to ask him or herself certain questions as to whether this Person number one is a flight risk That is why you find in certain cases Once you're being granted bond the court would request for your passport so that you cannot travel outside of the country and you would be required to To visit or to avail yourself every week or every month to a particular office a particular police station Just to make sure that you're around and that they are keeping tabs on you. So you cannot be a flight risk That is important. The second condition is to ensure that you do not have the power to influence The investigations or to harm the investigations in any way have the influencing of witnesses and that sort of thing The governor of migore is a powerful person The member of parliament from bakasi babuina is a powerful person They all have the ability to influence the cases if it was up to them I am not suggesting that that is what they are doing or that they will do But theoretically speaking they do have that might because they are politicians So in my personal opinion, I struggle to understand why obado got bail And why babuina got bail, but joey did not get bail It it it leaves a certain Bad test in the mouth of many kenyan citizens that indeed there's an issue of privilege In this country where persons who are either powerful in terms of their political association or in terms of wealth Are treated in a certain way and people who do not have Privilege by way of finance and politics are treated in a certain way The law is supposed to be fair to all and the conditions are supposed to be the same Yeah, so as a common citizen, I should ensure at no means I should or I may cross with the Courts because chances are I might not be bailed out in any case Because they don't have powers That is the unfortunate reality because even the police officer arresting you has a power to release you on their own recombinance You can be released for petty offenses or for non capital offenses on a police bond Even before you are taken to court But that is an issue of discretion And unfortunately with the with the history that we have had and to say history because That is what we can say for now, but the history of police corruption that has been there Such a decision is perhaps made not on merit But because of how much you are able to grieve the wills of justice All right, so this is a right That everybody has because at the end of the day we need to balance the right of the accused person to freedom Because you are accused but that doesn't mean you are guilty So as a kenyan you have the right to freedom to go back You know and do your business and to take care of your family But also must balance the interest of justice You do not want somebody who has murdered and is able to go and destroy evidence to be running around the street So it's an issue of balance that is a heavy responsibility entrusted to the police officers Entrusted to the judicial officer officers, and they need to take it seriously and deliver their mandate According to the law without Caring this person has money or this person is a powerful politician Quite profound. I would like us to you to give us your final comments and as you give us your final comments You alluded kindly and Okay, you kind of said We shall revisit is the reason as to why the budget allocation for the judiciary has been the way it has been and the president of the supreme court has been crying on this and we see He has been saying we have a backlog of cases and I remember just a few days ago They had a battle with the president in verbally on public because of these kind of things Because your final recommendations and maybe you could respond to this In in closing my remarks would be that we need to our citizens continue to be vigilant because We are living in a day of information where it is becoming more and more difficult for the Executive or those in authority to continue to get away with With an equal application of the law You're seeing what activist boniface manga is doing on the street every time There's a convoy traveling on the wrong side of the vehicle. They stopped them that convoy in Langata stopped doing that nowadays. They follow traffic rules Mildred a tea the activist was Arrested I'm sure you saw that case and I remember you discussed it on your show last week The issue of police officers entering your vehicle and not explaining the reason for your arrest So many things happening and the week before that we had a boy who was killed in Was it in easily a young boy who was was shot dead in circumstances? Which are not very clear. These are unfortunate things and we need to Challenge our judiciary that they have a very grave responsibility to Kenyan citizens because it is them that we turn to when we do not get What is proper service from the executive and from our members of parliament when nobody else can help you you turn to the judiciary So the judiciary needs to be well funded. I mean we have a budget for bbi But we do not have Enough courts. We should have a court in every county. We should have a high court in every county and this is some of the issues that we're discussing even at lsk politics and We have candidates like maria and benekka was spoken very Outrightly about this and I think we need to strengthen our judiciary and show that it is properly funded so that they do not have this Intimidation because you know if you do not have a salary or if you do not have a vehicle and you're a chief magistrate You're traveling in the same matter to as a suspect who You released a few minutes ago. It becomes an awkward situation true true That is thank you. So very much stanley nyatchae for coming and Bringing into light things that most of the askers didn't understand and back how many things for keeping against company has been my guest Stanley nyatchae. He's a lawyer and coming up next is why mashari k I will be leaving you in the safe hands of ken railbeats and the jts kasei you tomorrow in the y In the morning. My name is dereva. Hello. We have yourself a very good night and pleasant week ahead Goodbye