Constitution: Ruto’s rights also protected

William Ruto has made every effort to politicize the criminal case against him. But it looks like all his efforts will miserably fail as that story is only accepted among his Kalenjin followers. He is therefore an extremely angry man. He suspects there is someone, probably Raila Odinga, who wants to do him in. The rivalry between the two has now turned into a bitter enmity with no-holds-barred tactics being used by both sides.

As the undisputed leader of the ODM, Raila would obviously like to show he has powers to discipline his ostensible number two man in the party. But rebellious Ruto is still out to prove that he can be an extremely damaging thorn in Raila’s skin, with powers not only to deny him the massive Kalenjin support, but also to completely destroy him from within his own party.

As the battle between the two becomes more public with each passing day, Ruto has been seriously wounded and is showing signs of running away. Though he assures his supporters to have the wherewithal to fight another day, he is at the moment the underdog with criminal charges of fraud over his head. He is accused of defrauding the Kenya Pipeline Company (KPC) of 96 million shillings by purporting to sell KPC land belonging to the Ministry of Environment and Natural Resources nine years ago.

When the crime was allegedly committed Ruto was a sacred cow. No law enforcing agent would have dared touch him with a barge pole. Doing so would not only have been politically incorrect; but would also have amounted to committing political suicide that could only lead to being shown the door. Ruto, and many like him, continued becoming mysteriously richer all the time as public land, including forests, were being openly grabbed and sold at exorbitant amounts to government institutions and companies like the KPC.

But as soon as Kibaki came into power things began to change. Ruto was first charged for the alleged offence in 2005. But the old Constitution was still in force. He therefore wasted no time in trying to use it to get the case swept under the carpet. He in fact almost succeeded because for such a long time the case was almost forgotten. The matter must have been revived by the new Constitution which made Martha Karua challenge the Prime Minister in Parliament to tell the country what William Ruto was doing in the Cabinet when there was a criminal case pending in court against him.

The Prime Minister had to pretend to defend Ruto when he said the Minister for Higher Education had challenged the criminal case in the high court. Until the ruling of the High Court which would determine whether or not Ruto had a case to answer, the Minister for Higher Education was sort of protected. It so happened that soon after the Prime Ministers’ statement the High Court made a ruling declaring that Ruto had a criminal case to answer. Weather the abruptly expeditious ruling of the High Court was caused by the Prime Minister’s intervention or the new Constitution is neither here nor there.

In 2005 when Ruto was first charged with the offence he claimed the charges against him violated his Constitutional rights. Paradoxically it is the new Constitution which is making him now face the music as it has come with very strict demands and requirements for people who want to be leaders of this country.

Rather than defend himself in the magistrate’s court where he was first charged, Ruto took the matter to the High Court, which he expected to stop the case for the flimsy reasons of fictitious violation of his “constitutional rights”. But sitting at the High Court this time were three Judges who are about to be vetted, as recommended by the new Constitution , on whether or not they have the ability to deliver justice in a jurisprudentially upright manner . The three judges – Jeanne Gacheche, Roselyn Wendoh and Leonard Njagi had no option but to strictly follow the law in throwing out Ruto’s request.

While doing so they clearly said: “There is no proof that the applicant’s rights have been violated or breached in any way. For that reason we are unable to grant any prayers sought and send back the case to the trial court for hearing and determination.” The claims made by Ruto that the case was politically motivated were also rejected by the High Court, though the suspended Minister came out of court singing the same song.

Soon after Ruto lost his plea to have the case thrown out of court there was a public outcry urging both the President and the Prime Minister to suspend the Minister for Higher education until his case was heard and he was proved not guilty. The loudest noise against Ruto came from Martha Karua and Mutula Kilonzo who are both very highly respected lawyers.

Whatever the case may be Ruto is for the time being an extremely powerful politician in Kenya. Not only is he controlling the five million plus Kalenjin votes, but he is also an important member of the KKK alliance which hopes to form the next Government of Kikuyus, Kalenjins and Kambas. For these two reasons alone Raila has every excuse to push Ruto over the cliff so as to pave his almost undisputed success in his expected 2012 race for the presidency.

Kibaki, on the other hand, may not care much about the KKK and its success after his administration. But what he cares most about is the success of the new Constitution which has very strict demands on both the rule of law and the fight against corruption. Kibaki would therefore not risk the possibility of weakening the importance of the new Constitution for the sake of pleasing Ruto, however powerful he may be among the Kalenjins. Besides that, Kibaki has no more political ambition and does not really care who takes over from him when he retires as the man who gave Kenya a new and most democratic Constitution. That reputation alone is bound to guarantee him perpetual respect long after he departs from both the political scene and indeed from this world.

So in obeying the Anti-Corruption and Economic Crimes Act which demands public officers who are charged with corruption or economic crime to be suspended at half pay, with effect from the date of the charge, Kibaki and Raila had no option but to suspend Ruto, albeit for completely different reasons. Because the law also says the public officer ceases to be suspended if the proceedings against him are discontinued or if he is acquitted, Ruto therefore still stands a chance of getting his job back in the Cabinet, but first he has the uphill task of fighting the criminal charges against him.

Unfortunately the line of defence he has taken of politicizing the entire case will only put him in more trouble because the three judges have already ruled on that matter. Indeed it will be extremely difficult for the accused politician to continue claiming that the entire case against him is political because under the new Constitution the independence of the Judiciary is very well defined and defended.

William Ruto is about to discover that the days when the Executive manipulated the Judiciary in order to win political favours and punish those opposed to the dictatorial regimes of the past are gone and gone forever. Today the courts are playing a completely different role as defined by Article 159(1) of the Constitution which clearly says judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the Constitution.

It further says that in exercising judicial authority, the courts and tribunals shall be guided by the principles of justice being done to all, irrespective of status. It says justice shall not be delayed though alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted. Since Ruto’s case is obviously criminal the last options are out of the question.

Today Ruto has appealed against the ruling of the three judges who see no merit for him to continue claiming his “constitutional rights” are being violated. The old style of using that argument as tactful procedural technicalities in order to defeat justice is taken care of very well by the new Constitution which clearly says in Article 159(2) (d) justice shall be administered without undue regard to procedural technicalities.

When Ruto continues to claim that his criminal case is a political one he is in fact challenging the independence of the Judiciary which is defended in the new Constitution’s Article 160(1) which says the Judiciary shall not be subject to the control or direction of any person or authority. When Ruto, however, says he has to carry his own cross he is absolutely right and he stands a very good chance of bouncing back into political popularity outside his own Kalenjin chiefdom when he legally succeeds in defending himself against all the criminal charges against him. After all the new Constitution also defends his right to a fair trial.