Kenya: A Legal System in Turmoil : Confusion, Chaos, Corruption and Brutality Are Common

A man who gouged out his wife’s eyes because she presented him with five girls and no boys got five years in prison. So did a man found with a leaflet denouncing President Daniel Arap Moi.

Two men convicted of smuggling heroin into Kenya got a 12 months each. So did a man who stole a mango.

Such is the confusion, chaos, political interference, brutality and corruption of Kenya’s legal system. Lawyers in the East African country fear that the rule of law itself is in danger of collapse.

“That is what has marked out this country as a place where it is bearable to live,” a senior lawyer in Nairobi said. “Without respect for that rule of law, there is no liberty.

“It is my belief, and that of many of my colleagues both black and white, that the government is undermining the very basis on which Kenya has flourished and distinguished it from its less fortunate neighbors.”

Seeds of Crisis

Legal sources in the Kenyan capital--who declined to be identified for fear of reprisals--trace the current crisis to the beginning of Moi’s presidency.

Moi put into words last year what every Kenyan already knew in practice: Despite the Westminister-style constitution and Kenya’s links to the West, his Kenya African National Union--Kenya’s sole political grouping--is “supreme” even over the High Court and Parliament.

A year earlier, he ordered a crackdown on the little-known leftist Mwakenya group, which called for his overthrow. That crackdown exposed the fragility of the Kenyan legal system and the routine brutality of the police.

Guilty Pleas Extracted

About 70 people were accused of sedition--reading or possessing Mwakenya pamphlets or even knowing that others had done so--and were sentenced to between 18 months and seven years. Some were accused of being Mwakenya members.

Most of the cases had one thing in common: The defendants pleaded guilty under police duress. Suspects who would not were simply denied a court appearance and detained, including one prominent Nairobi lawyer who tried to defend the accused properly.

Many were denied legal representation. Cases were often heard quickly, during lunch recesses to frustrate defense lawyers and journalists. Most were dealt with by then-Chief Magistrate H. H. Buch.

Buch never inquired why many defendants were injured or unrepresented.

Systematic Torture

Worse, it became obvious that police torture and beatings were systematic. Lawyers, defendants and ordinary Kenyans now say that beatings are routine in even the most trivial, nonpolitical cases and that magistrates and judges are turning a blind eye to widespread police abuse.

“They know which side their bread is buttered on. The system is riddled with corruption to the highest levels,” one attorney said. “It has really peaked over the last 18 months.”

When Buch was overlooked in recent appointments to the High Court, he resigned in anger, embarrassing Chief Justice Cecil Miller.

“Buch had done sterling service for the government sending Mwakenya defendants to jail. He expected his reward and didn’t get it,” a source said.

Weak, Autocratic

Miller, appointed by Moi in 1986, is himself a controversial figure. Colleagues say he has poor grasp of law, is weak, autocratic, pompous and a ladies’ man. And he is fond of Scotch, they add.

“There is no doubt he is the tool of the government and was installed because he will say yes,” an experienced Nairobi lawyer said. “Grass-roots lawyers do not have his ear and can no longer express discreet disquiet over developments to him. That was not the case in the past.”

Miller’s critics point vigorously at his handling of the Judge Derek Schofield affair, a huge legal scandal that convinced many Kenyan lawyers the rule of law is no more than a pretense.

In the summer of 1987, Stephan Karanja, a Kenyan suspected of complicity in a robbery, disappeared while in police custody. Weeks later, his wife filed suit in Schofield’s court for her husband to be produced. After some lying, the police admitted that he was dead. They said he was killed while trying to escape but could produce no body.

No Remains Found

Schofield, a British judge on long-term contract to Kenya under a British government exchange system, directed police to produce the corpse. For weeks, dozens of pauper’s graves in the municipal cemetery at Eldoret in northern Kenya were opened because police said they buried him there, but Karanja’s remains were never found.

Schofield lost patience and twice summoned the head of plainclothes Kenyan police, Noah Arap Too--a senior member of the president’s Kalenjin tribe--to threaten him with contempt proceedings.

Within 24 hours of the second threat, Miller took Schofield off the case without explanation except for a reference to sensational publicity. The Briton quit the bench and left Kenya in disgust, and the case is still unheard 12 months after Karanja’s death.

Almost every practicing lawyer can tell horror stories about breakdowns in the system that result from lack of money, case overload, sloppiness and corruption. Court clerks openly take cash to lose prosecution files, delay cases and generally do defendants favors.

Paper Work Mounds

Attorneys say the court paper work simply does not hold up. A barrister inquiring about case papers in Nairobi recently was directed by an official to a huge, random mound of files several feet high in a central store.

“Have a look yourself,” the official suggested.

The lawyer sent his clerk who searched more than four hours to find the dossier. Others are not so lucky.

Neither does corruption end with court officials. Magistrates and even senior judges let it be known they are on the take. One judge who recently retired was known in the corridors of the law courts as “Bwana (Mr.) Ten Percent” because of the rake-off he regularly took from awards he made from the bench.

Inconsistent Sentencing

Some magistrates are weak in legal training, and sentencing can often be wildly inconsistent.

The police force is manipulated by back-handers known as chai, tea money. As little as 10 Kenyan shillings (60 cents) will buy off almost any officer at regular document checks at roadblocks, which tend to spring up in the week before police payday when cash is tight.

Police arresting a man for failing to appear on a traffic summons recently suggested outside the door of the courtroom that for a few bob the arrested man could simply bolt while they turned their backs. Most Kenyans can tell dozens of similar stories.

“The key to the whole corruption problem is salaries,” an attorney said. “They are abysmally low and so, correspondingly, is the quality and intelligence of the people recruited.”

‘Good Laws Are There’

Ordinary police officers get free, poor housing but earn as little as $55 a month. A senior high court judge gets some extras but a basic salary of only $10,000 a year. A good Nairobi advocate in private practice can make five times that.

Many lawyers feel that by African standards, Kenya still has a legal framework that can be made to work but is being crippled by the personalities who control it.

“Good laws are there. It’s the people that are the problem,” said one advocate.

Others are deeply pessimistic and maintain that in many ways even the legal system in South Africa is less politically tainted and more independent than that being operated in Kenya now.

Schofield saw great danger for the future if the legal profession allowed itself to be cowed by unconstitutional pressures. Insiders say large numbers of Kenyan lawyers and legal students are deeply worried about recent trends too.

“These matters are so basic that they may be forgotten in the day-to-day administration of the law,” Schofield said before leaving Kenya. “Once proper procedures are deliberately abused or ignored, then law is brought into disrepute.

“If the courts show disrespect for the law and legal procedures, then who will respect them?”