Thanks to the precedent set by the Siaya High Court, Kenyans will find it harder to expose corruption or make public enquiries about the conduct of public officials but the communist Party is not giving up just yet.
When Hon Elisha Ochieng was confronted with accusations of corruption by way of misappropriating CDF-NG funds for Masinde Primary School in Gem constituency, he went to court and successfully blocked the whistleblower and accuser from talking about the issue.
With an ex parte ruling against Booker Ngesa Omole, the MP was able to deny his own constituents their right of free speech, lawful assembly and the duty of the citizens to question public officials over their conduct.
“By going to court ruling on trumped up defamation charges, the Siaya High Court through Justice Aburili sent a chilling message to any Kenyans who are involved in their civic affairs. Basically that is misuse of the judicial process and it is what we call weaponizing a system against the people it is supposed to serve,” says Booker Omole who was the defendant in the case.
That ruling also raised eyebrows within the legal fraternity and justice and human rights activists. Many said the ruling was unexpected not just because corruption cases are a dime a dozen in Kenya at the moment, but because courts in Kenya usually let cases of public interest to sort themselves out rather than taking a side with one party; usually the defendants.
By granting Elisha Ochieng’ the injunctive relief – in other words, by winning the ruling – he had succeeded in in turning a known ploy used by rich and powerful people to use the court systems against their poor opponents. It is why, when the same move is applied by public officials on a matter of public interest, the courts take an impartial stance and let the issue play out in the court system or the media arena.
This system, and the precedence that had existed on this matter, has been in place because, unlike in private litigations there is a known and perceived imbalance in public matters. Many citizens do not have the time or resources or even the know-how to fight against matters of corruption or other cases of misuse of power. Not as individuals and sometimes not as a group, as was the case for the people of Gem.
What they do, instead, is to bring such matters to the public arena where the media, activists, other politicians and even the police or the CID take up the matter. This process is protected by default because the ensuing battles pit innocent civilians against powerful and resource rich public officials. The process is designed to correct the power imbalance; propping the public to be able to at least see eye to eye with these officials.
For the people of Gem, being able to march against their member of parliament and being allowed to talk about the issue and to discuss it amongst themselves was not just their civilian power prop, but it is also something given to them as a right and freedom under the Constitution of Kenya.
The Communist Party of Kenya’s chairman has spoken about the matter. “Last year, we saw how in that one ex parte ruling, where Justice Florence Aburili did not even grant Booker Omole who was the defendant, an opportunity to defend himself on the defamation charges, can incapacitate a whole community.”
The chairman is not being dramatic. In fact, his take on the matter is quite sane, since he seems to focus on how it was a single incident that affected the people of Gem, which it was. What many fail to see in the light of their passions is that court rulings like this have a far reaching consequences:
The ruling will set a precedent that will allow future politicians and public officials to seek or even pay for ex parte rulings to muzzle their critics, whistleblowers and innocent civilians who may not like the way they are doing their work. It will also serve as a deterrent to anyone who might wish to become a whistleblower for fear that their elected leader or public officials will take them to court for it: an expensive and tiring process for those involved.
The cynics will look at this as a good first move made by the MP. Like we mentioned, they make these often enough. What the cynics will not see is that the court was not obligated to grant them the judgment it did. There were many cases where other judges had given public discourse preference rather than save a public official the blushes of having to account for his job… which is part of his or her job. These questions and enquiries are part and parcel of holding a public office.
Even the cynics will connect the threads between this new ruling to the future rulings that may or may not involve something affecting their lives. They will see just how damaging such a precedence may have on future cases.
After the success of his first heist of the Constitutional rights of his own constituents, Hon. Elisha Ochieng has found himself in need of another gag for those persistent citizens who managed to get the corruption case to be taken up by the Ethics and Anti-Corruption Commission, EACC court in Kisumu. With the case taking its natural course as any other corruption case, the MP may have realized the dangers of these unchartered waters.
Remembering his trusted killer of silencing critics using the court system, he went back to court to try and get Booker to also stop talking about and organizing marches around the court before the EACC! It is easy to see why he would feel emboldened: he had managed to silence them in the past and in the legal world, and expected to muzzle them again.
Unlike gambling which is a game of chance, courts are a game of set rules and in this case, Elisha Ochieng can make a solid claim to have Booker Omole stopped because, well, the courts have done so before! In fact, not only have the courts stopped citiviallians from protesting, marching or even speaking out against cases of impropriety and corruption, they did it against the very same plaintiff (himself) and the very same defendant (Booker).
And did it sight unseen, defendant unheard!
The reason he is going to court once again is because, with the matter at the EACC, the good MP wishes to negotiate with the citizens so that they can withdraw from the matter. While negotiating is a strong word to describe what has gone on, especially with at least one witness reporting being threatened with violence for speaking out against the MP, this lawsuit is the equivalent of waving a flag that says: ‘I set precedence on your protests last time and will do so again if you don’t shut up and negotiate with me.’
These advanced negotiation skills: named for the extra threats and judicial-sized precedence hanging over you, have been deployed to force the matter from being pursued at the EACC court. It is a well known practice that causes witnesses and the accusers to suddenly lose interest in the case, leaving the judgment to go for the advanced negotiator.
While nobody seems to be listening to these advanced negotiation tactics by the MP. The world is watching. Not since the politically agitating days of the Moi regime have the courts been cited for total disregard of the rule of the legal process in favour of the public officials. The powers protecting whistleblowers and those protesting the actions of corrupt public officials are being stripped away. Any subsequent judgment for the officials while denying the public their right to assembly and expression of free speech will be a green light for other public officials to play the same game.
A second ruling in favour of the MP will open the doors for politicians and other public officials to completely circumvent public discourse and matters of public interest. If the ruling to muzzle Booker is upheld, the Gem MP should take a lap of victory because he will have single-handedly opened the floodgates for corruption, theft and misuse of public resources to thrive without anyone coming between them and their loot.
And that is the biggest weapon ever used against the people of Kenya.