The escalation of the war on graft appears to have taken a more serious tone with the arrest of Deputy Chief Justice Philomena Mwilu. She is still presumed innocent till proved guilty under the law.
Nevertheless, her initial defense team raises three fundamental questions that may make her return to the bench questionable even if found innocent.
First and foremost, some pundits have already raised questions on the nexus between the charges against Justice Mwilu and the “we shall revisit” remark made by President Kenyatta in the aftermath of court decision on the 2017 presidential election petition.
Although this idea was addressed by the DPP in his public statement, the exclusive composition of NASA political lawyers in the presidential petition appear to buttress the thinking at least in the minds of partisan citizens.
This therefore raises another question of whether the NASA legal team is paying a political debt stemming from Justice Mwilu’s favorable decision for the litigants in the presidential petition.
The composition of the legal team with lawyers who happen to be politicians from one side of the political divide might be purely coincidental given the legal expertise that the learned friends bring to such cases, but in law the legalities of the case are as important as the perceptions of the public, which has diminished confidence in the delivery and application of justice.
Secondly, the defense team is composed of at least three senators and four members of the National Assembly. As lawyers, they have every right and obligation of defending and representing the best interest of their client.
As elected public representatives they shoulder the burden of standing for public interest on corruption cases and any other threat to the public good. In essence by challenging the DPP in public interest cases, the defense lawyers serving in Parliament are essentially challenging the same public interest they sought to represent and one which they took an oath to defend.
Third, until the recent handshake between President Kenyatta and Raila Odinga, the Kenyan public was polarized along ethnic and political lines in almost all public and political issues.
There is a seemingly real possibility in the politicization of the war on graft especially if the defense applies the “payback” card strategy as the cornerstone to this case.
Finally, the prosecution of Justice Mwilu is a sensitive matter that touches the heart of the Judiciary. In the final analysis, justice for Kenyans and for Justice Mwilu should not only be done, but be perceived to be done.
An impartial legal process is the only path that will protect and entrench the rule of law and build the requisite confidence in the vulnerable and nascent justice system.
