KIUNGA: Courts should safeguard public interest

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Corruption thrives in secrecy (lack of transparency) and impunity (lack of accountability).

A culture that encourages transparency and exposure, law enforcement agencies that investigates without fear or favour and courts that will independently try and punish offenders are, therefore, critical pillars to any anti-corruption strategy. When one pillar is absent or weak, the whole strategy collapses.

While the courts may not have actively gone out of their way to “frustrate” the war on graft, they can do better by recognising and applying the legal principle of public interest in their adjudication.

Public interest is deeply embedded in the Constitution. Article 73 provides that the guiding principles of leadership and integrity include selfless service based solely on the public interest, demonstrated by honesty and the declaration of any conflict of interest.

Corruption, bribery, abuse of office and other related ills, in as far as they involve misuse and misappropriation of public resources or power for private gain, are a direct affront to the principle of public interest.

The criticism of the Judiciary arises from the frequent number of corruption cases where the suspects have used the courts to evade justice. In an environment where corruption is rampant and pervasive like our country, the courts have an obligation to ensure that they are not used by wealthy litigants, who can afford the best legal services, as shields from substantive justice.

If courts don’t judiciously discharge that obligation, then they become accomplices to the resulting impunity and lose credibility as guardians of the common public good, justice, equality and freedom for all.

And the blame for this state of affairs lies squarely at the door of the Supreme Court. In other jurisdictions, the Supreme Court leads the Judiciary in charting a clear path of strong, unequivocal defence of human rights and the public good. They identify issues with significant legal implications on public interest and, as the ultimate interpreter of the Constitution, examine the issue and give a clear direction for lower courts.

Examples include the South African Constitutional Court’s ground-breaking judgments on economic, social and cultural rights issues and the US Supreme Court’s famous decisions on discrimination, abortion and free speech.

Our Supreme Court, unfortunately, has miserably failed to offer such judicial leadership in matters of critical public and national interest viz-a-viz the Constitution.

The lower courts are, therefore, left to wander in the dark on weighty constitutional matters, resulting in the High Court and the Court of Appeal often speaking differently on the same constitutional issue.

On corruption, allegations and investigation of improper and/or corrupt conduct, mostly against powerful public officials, are generally bound to attract strong resistance from wealthy and influential people in society.

The courts cannot hide behind the glass of judicial independence and narrowly interpret certain sections of the law while blind to the bigger picture of corruption as a public vice.

The individual constitutional rights of a few, mostly wealthy individuals, must be balanced against the wider constitutional principle of public interest.

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