By LUKOYE ATWOLI
Sunday Nation 27 June 2010
Last week, the police officer who was video-taped shooting and killing protesters at the height of the post-election violence was released by the High Court due to insufficient evidence.
Unlike other recent cases, this acquittal cannot be blamed on the judiciary alone. In a murder trial, the burden of proof is on the prosecution, which is required to demonstrate beyond any reasonable doubt that the person in the dock was responsible for the crime.
In this case, it appears there was a discrepancy in the serial number of the weapon allegedly used to commit the offence and the one produced in court as evidence.
Despite the fact that even the judge would be hard pressed to unequivocally state that the suspect is not guilty, the rigours of our trial system demand that the judge must not entertain even the slightest doubt about the culpability of the accused, given the gravity of the charge and the severity of the sentence.
It, therefore, behoves the prosecuting authority to be meticulous in preserving evidence to ensure that the case is decided only on its own merits and not on technicalities.
Notwithstanding the arguments about the lack of facilities and personnel to ensure flawless investigations and prosecutions, it is difficult to imagine what sophisticated equipment is required to properly store a murder weapon and identify it correctly in court.
The events leading up to the acquittal of this police officer, therefore, raise questions about the possibility of a conspiracy at some level in the police force to protect one of their own by ensuring that no matter the facts of the case, he would be acquitted on some technicality. Although it looks good to brother officers in the force to know that they would be taken care of in case they run afoul of the law in the course of their duties, it is eventually counter-productive to allow these infractions to continue.
At the end of the day, it diminishes the confidence the public has in the police force, reducing the cooperation of citizens in initiatives such as community policing. It also demoralises the upright officers in the force who would like to see justice being done, leading to a state where they eventually degenerate to the same level of incompetence in other areas of their work. At a more fundamental level, the acquittal of this officer raises questions about the ability of the Kenyan legal justice system to handle the even more complicated cases arising from the post-election conflagration.
If such a case that many would have considered open and shut and replete even with video evidence and a plethora of witnesses can fail, what about the more involving crimes such as the burning of people in their houses, forceful circumcisions, rapes and beheadings?
Can we actually continue talking about a local tribunal to try the so-called small fry, if we cannot even successfully conclude a case such as this one? It may be difficult for the ICC and the international community to understand why Kenyans are so fixated on The Hague, but looking at this case it should be easy to figure this out.
Kenyans know themselves so well that they would rather let someone else deal with the stench emanating from our moment of darkness than allow our flawed legal justice system to whitewash the crimes and perpetrate miscarriages of justice.
The tragedy with this situation is that as time flies, it will become more and more difficult to prosecute the so-called small cases arising from the violence. If we are still relying on our police force to preserve the evidence from that time, we are clearly setting ourselves up for massive failure. Indeed even if an international tribunal were to be formed, it would need an independent investigation and prosecutorial arm that would not be dependent on government resources to complete its tasks.
Perhaps only a new constitution stands a chance of correcting these glaring problems with our legal institutions by restructuring the entire state apparatus and enabling the vetting of important office holders.
This may result in a more accountable system of dispensing justice.
However, as far as the crimes of 2008 are concerned, it may also be necessary to begin thinking about a more credible truth, justice and reconciliation process that can comprehensively deal with both the crimes and their antecedents. The current travelling circus led by Bethuel Kiplagat and his team should be disbanded and restructured to be able to deal with this onerous task.
The alternative is continued festering of old and new wounds, waiting for an opportune time to erupt and cause untold suffering to future generations.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer, Moi University School of Medicine