Judiciary reform littered with failure

Off with her head! That is the call four former presidents of the Law Society of Kenya (LSK) have made in demanding a change of guard at the apex of the Judiciary. One of the four, Nelson Havi, has petitioned the Judicial Service Commission (JSC) to remove Chief Justice Martha Koome, alongside all the other Supreme Court judges.

Quarrels between judges and the LSK hardly end well. Previous such tiffs have terminated the careers of two CJs, coinciding with a change of government.

The clamour for a change of leadership in the Judiciary only two years after the President William Ruto administration came to power has echoes from the past.

Bernard Chunga clung onto the CJ office for two months after swearing in Mwai Kibaki as President on December 31, 2002. He had prevaricated when Senior Counsel Philip Murgor, who had just been appointed Deputy Public Prosecutor, brought an offer for him to resign, but capitulated when a tribunal was formed—in response to pressure from victims of his supercilious prosecutions during the President Daniel Moi era—to investigate his conduct. The new CJ, Evan Johnson Gicheru, set up a committee to investigate corruption in the Judiciary. Its report, calling for “radical surgery”, implicated five out of nine Court of Appeal judges, half of the 36 High Court justices, a third of the 254 magistrates as well as 124 paralegal staff.

Divorce case

The allegations annexed to the report were shocking: a judge reportedly arrived with a furled umbrella every morning and left with it in the evening, still furled, bulging with dollar bills. Another senior judge allegedly wrote overnight the very arguments his girlfriend would present to him in court the following morning. A judicial officer hearing a divorce case started living with the litigant, and found in his favour.

Many chose to leave quickly and quietly.

Judges Philip Waki, Msagha Mbogholi, Daniel Aganyanya and his spouse Justice Roselyn Nambuye successfully challenged their removal. Although this is cited as evidence of flaws in the “radical surgery”, institutional insiders have long held that these judges were picked as replacements for those who were able to buy their way out of the “List of Shame”.

Of course, Kibaki thereafter appointed at least 26 new judges to the Court of Appeal and the High Court, thus establishing a commanding majority in both, but the crusade to cleanse the Judiciary had not delivered the results promised. Moi before him had first retained “contract judges” from the Commonwealth, but cleared them out when he removed security of tenure. He had inherited the contract judges from the Kenyatta era, necessitated after the first African Chief Justice, Kitili Mwendwa, left office after the failed coup attempt in 1971.

Public sentiment throughout the constitutional review process, and faithfully reproduced in the Harmonised Draft Constitution, favoured the resignation of all serving judges so that they could apply for their jobs afresh. What gave Parliament pause when tinkering with the draft was the strong feeling that the “radical surgery” some eight years before had spattered blood on innocents. The truth is more nuanced than that.

Vetting, as well as the resignation of the Chief Justice and the Attorney General in six months, was the compromise between public demands for integrity and protecting the entrenched interests of the old Judiciary. The way it played out did not produce the desired outcomes.

Dry-cleaning

Between February 27, 2011 when Gicheru left office and June 22 when Dr Willy Mutunga succeeded him, judges and magistrates’ files underwent thorough dry-cleaning. Little wonder, therefore, that JSC was unable to present complaints or evidence before the Judges and Magistrates Vetting Board when it finally began sittings in February 2012 – almost a year since the law establishing it had been gazetted.

The board sent home 14 judges, but it was hampered by fourfold delays beyond its one-year timeline, thus opening avenues for negotiating its findings through litigation, and other indirect forms of persuasion. It left the nodes of corruption in the institution largely undisturbed. The corruption in the Judiciary would only be diluted by the recruitment of large numbers of new judges and to change the institution’s culture.

Ironically, two of the judges the board cleared subsequently faced serious corruption allegations. Supreme Court Justice Philip Tunoi was saved from tribunal proceedings through legal craft—delays in proceedings delivered him safely to his retirement. Justice Said Chitembwe was exposed by former Governor Mike Sonko.

In large part, President Uhuru Kenyatta’s quarrels with the Judiciary centred on his not having a say in picking judges, a grievance he voiced and drove home petulantly. He refused to appoint nominees to judgeship or commissioner to the JSC for a year, and in the latter case, was overridden by a court order. He tried to have his revenge by introducing a Judiciary Ombudsman in the Building Bridges Initiative’s constitutional amendment, which collapsed in court.

Last year, President William Ruto launched a blistering attack on the Judiciary, alleging corruption. This prompted Justice Koome to visit him at State House. Its motive is not what it seems, and it will not result in what is promised.

The writer is a board member of the Kenya Human Rights Commission. The views in this article are his.