1. Paul Mwangi's article is most welcome not because it raises a novel point of law but because it forces us to appreciate the effort he puts into it, then debate/interrogate the cardinal issues he raises. We are eternally grateful to him in arousing our curiosity on the subject.
2. Paul talks about the presumption of innocence. If we break it down, it simply means that an accused person is innocent until proven guilty. So what is controversial about this bedrock of the criminal justice system? I see none. The doctrine requires the prosecution to prove
Beyond any reasonable double each essential elements of the crime charged. If it fails to do so the accused is set free. Paul doesn't mount a doctrinal assault on the doctrine nor argues for a paradigm shift because he can't be persuasive in that enterprise. Instead he goes for
A soft target...the judiciary. Paul makes a cardinal mistake in the article that undermine its central thesis.He fails to appreciate the role courts play in our adversarial system.The court is a referee to a game with rules. The rules are known to the court, the prosecutor & the
Defence.The courts will hold all parties to the rules. In criminal trial the burden of proof is a central pillar. Paul wants to excuse the prosecution from proving every charge in the case to the required standard. Instead he wants the court to help the prosecution so that the
political transient "war" on corruption bears fruits. That isn't the role of the court. It helps neither party. It is true and every Kenyan (including the blind ones) can see that whereas we commend the DPP & DCIO for their effort & give them an "A" for drama & razzmatazz, they
Have ZERO chance of getting convinction. Paul's thesis is not serious. He contends that the prosecution loses because "they (accused)are presumed incapable of committing the crimes they are accused of...how do you prove a case beyond reasonable doubt to a judge or a magistrate
Who already doubts that the accused person could have done what he is accused of?" I have a lot of respect for Paul but this is childish and preposterous. A lawyer of the great/good standing of Paul shouldn't make this pedestrian argument in public. First, courts never make such
Presumptions and Paul doesnt give us empirical evidence to buttress the grave allegations he makes. Second Paul supposes that the court & the accused are long time buddies and the court give character testimony on behalf of the accused. Paul again makes the un-persuasive argument
That "the presumption of innocence in Kenya is now not just protecting impunity but granting immunity"...that is sophistry...attractive but false...how that is the case, Paul doesn't even attempt to show us. But again we go back to Paul's failure to appreciate the legal doctrine
In question. If the prosecution fails to prove the case, why is that of any concern to the court? The court is indifferent to the outcome of a criminal trial. It favours neither party & doesn't care whether the accused is set free or jailed. The court protects its process but is
Not a stakeholder in the final outcome. Paul's argument that the court should prefer a conviction the lack of evidence notwithstanding is too simplistic and banal. Paul states "But treating the accused person as an innocent party is different from treating the person as though
They were a virtuous person...increasingly treating anyone suspected of a crime as though they are virtuous persons being victimised by the criminal justice system". Courts don't try the virtuous/righteous standing or the status of a man in Soceity. It wears blinkers.
Paul addresses an important topic but take a perilous trajectory. I agree with him that the current "war" on corruption has zero chance of leading to conviction. But I disagree with him that it's the judiciary...stupid!. My reasons are...first, the war on corruption is executive
Driven/inspired...nothing wrong with that perse. The targets are picked for political consideration. Soft targets are left out for political consideration. It is thus a witchhunt. Second, The war spares certain category of individuals who enjoy political protection. Both the DPP
And the DCIO don't have operational independence to pick their targets of choice. Instead a monthly list is given to them. Third, why has the govt stopped the lifestyle audit for HE Uhuru and everybody below him? Why can't they explain their wealth and declare it for inspection?
Because the DPP and DCIO are given periodic targets of individuals they should investigate and prosecute the question of whether a crime has been committed or whether evidence is waterproof is secondary. When these question are raised by the investigating officer they are told
"That is not your job...take him to court and leave it to the court". Ofcourse the court MUST throw out useless cases with no evidence to support the charges.That is where the problem lies...& not the scapegoat Paul points the finger to.The courts are innocent and I acquit them.
