RIPENSANDOCI

CONSTITUTIONAL PROBLEMS OF KENYA.1

Whoever reads Mr. S. N. Waruhiu’s book “From Autocracy to Democracy in Kenya” will be impressed by the amount of information and by the clarity of the analysis done by the author. Any reader who did not grow up within an Anglo-Saxon juridical culture will be additionally impressed by the fact that, in spite of the burden put on him by the bias of his Anglo-Saxon juridical education, the author was perfectly capable to identify many of the sources of the present Kenyan problems, even if often without becoming aware of it.

The whole Anglo-Saxon constitutional history is characterised by the Executive trying to somehow keep the Judiciary under its control and people grown up within this system, usually fail in getting furious in front of some facts, which mightily irritate anyone who instead grew up within a Roman juridical culture.

The Attorney General, who is part of the Executive and a Cabinet member and who can enter a nolle prosequi, is a typical antidemocratic Anglo-Saxon invention, for the purpose of protecting from prosecution members of the ruling clique! The job of an attorney general is totally unknown and unheard of in countries following the Roman system of laws, because both the concepts of such an attorney general and of the possibility of entering a nolle prosequi ruling are unknown to the Roman code, even if nolle prosequi (don’t prosecute) is said in Latin. Actually, one of the fundamental concepts of the Roman law is that there cannot be any discretionary power in prosecuting and the prosecution is a straight-forward, automatic and compulsory exercise that has to be started any time there is a notitia criminis (=information of a crime), even if this crime appears to be only possible and not at all sure. The Anglo-Saxon juridical culture justifies these two obnoxious ideas - attorney general and nolle prosequi - because they consider the needs of the Executive to be prevalent in respect of the needs of Justice and they want to have the possibility of stopping a case that may embarrass the executive, while the Roman law considers the interest of theoretical Justice to be paramount and having priority in respect of the interests of the Executive.

In a Roman system of law, for example, since the Goldenberg inquest hinted very clearly to the possibility of criminal acts having been committed, the competent prosecutor would have proffered his accusations and a formal trial would have been started long ago. The Office of the Prosecutor, in continental Europe, where the Roman Code is prevalent, is not under the control of the Executive, but it is totally independent, as a branch of the Judiciary. In the Cabinet, there is a Minister of Justice, who is competent to supply the Judiciary with all the paraphernalia needed for it to function (buildings, machines, archives, secretaries, cleaners, etc.), but has nothing to say about how justice is administered and how the Judiciary recruits its court staff.

Let me give two examples of what this system causes:

1. About 20 years ago, as everybody remembers, the Press, all over the world, started reporting on what was at that time called the Lokheed Scandal. Newspapers gave the impression that the Lokheed may have paid bribes to several Ministers of Defence of NATO countries to convince them to purchase Lokheed combat aircrafts (which, by the way, were quite good crafts). The Chief Prosecutor of Rome, read that piece of news on the newspapers and, since this was a notitia criminis (information about a crime) and since the Constitution commands that a notitia criminis must be automatically followed by a prosecution, he had no option other than prosecuting his Minister of Defence. The investigators of the Judiciary Police found and supplied him with the necessary evidence; he could prove his points in Court; won the case and the Minister of Defence was sentenced to 4 and one half years prison, even if he was a powerful member of the ruling coalition.

2. Leone was one of the Presidents of the Republic of Italy. He was a famous criminal lawyer and he was paid a fee for a case he argued before becoming President of the Republic, 2 year after being in office. He forgot, probably in a genuine way, to declare this sum into his tax return and a journalist published the information on a newspaper (tax returns in Italy are available for inspection to every citizen). The competent Prosecutor of Rome Judiciary set-up read the relevant article in a newspaper and he had no other option than prosecuting the President of the Republic, who was found guilty, was heavily fined (there, a criminal offence politically charged, if committed by a politician, is punished more severely than if committed by a private citizen), had to resign from the Presidency and disappeared from the political life in shame.

How can one guarantee such a freedom for the Judiciary? Simple: the salary of judges is by law tied up with the salaries of the members of Parliament, who, in every climate do not like to starve; they have tenure; the Executive has no power whatsoever on them, because judges are not appointed by the Executive or by the Head of state, but through a competitive examination. (The idea of an executive president of republic appointing judges as in USA or in Kenya would give the creeps to any continental European! And with good reasons! Look at what happened in the USA, where the noble founding Fathers who wrote the American Constitution, were also victims of their British juridical culture of the time and were unable to avoid being poisoned by it, with the result that they could not foresee devices capable of avoiding what happened recently: Bush father appointed the High Court judges and the High Court judges rigged Bush son into the Presidency. How many devices are regrettably missing in the American Constitution to prevent George Bush from successfully busying himself in constructing the Fascist state he seems to try to establish in America? None, which is simply horrifying!). In a nutshell, if there is the need of appointing 15 new judges, the Minister of Justice (a cabinet member, I repeat it, responsible to supply the Judiciary with all the means necessary to do their work, without any power whatsoever in the running of court affairs) advertises the jobs. Eventually 50 persons apply. After being vetted by the Judiciary Police (nobody can be a judge if in his enlarged family there is somebody convicted for a criminal act), 45 candidates remain. They are summoned one day in Rome at the Palazzo degli Esami (State Examination Building) and given several points of law, on each one of them they have to write an essay. A panel of examiners made by senior judges and professors of law in the Universities read, discusses and marks these essays and only after marking them, the sealed envelopes containing the names of the candidates are opened. The 15 candidates scoring higher are employed!

A newly employed judge, after a thorough training program, serves 4 years as junior judge in a lower court to gain practical experience in the bench and, after this period, he may be sent to gain a similar experience in a prosecution office. During his career, he can serve 4 year long tours of duty either as a judge or as a prosecutor as the need may arise and as he is inclined to and his promotions will happen also through his performance and through competitive examinations. (In Kenya, this system would have the added advantage of putting to work very competent prosecutors, instead of half literate policemen).

Who rules the Judiciary? Every member of the Judiciary votes for the election of the Superior Council of the Judiciary, whose honorary (not executive!) Chairman is the President of the Republic. The Parliament chooses a small number of members, that however will not be able to strongly influence a majority and who, anyway, must be respected and well known men of law and, if they were parliamentarians, they have to resign form their chamber. This Council administers discipline and supervises the career of every judge or prosecutor, so that, if you are a judge that convicted a member of the political party of the Minister of Justice, all this minister can do against you, is to write a letter of complaint to the Superior Council of the Judiciary alleging that you dress improperly or you are late for work and the Superior Council will decide on merit if to follow up the matter or dismiss it.

The Judiciary is so independent and so powerful in continental Europe, that in Italy it destroyed an omnipotent political system who had become utterly arrogant and corrupt, by simply prosecuting abuses not permitted by the law (one of the most powerful politicians and Prime Ministers of Italy, Craxi, run away and died in Tunisia because he was sentenced to 12 and one half years in prison for corrupted practices in favour of his party, when Prime Minister).

PART 2 FOLLOWS