Restoring integrity in the Judiciary

Because of the central location the justice sector occupies within the national integrity chain, stakeholders made a decision to embark on collective action. Under the umbrella of the National Council on the Administration of Justice, we developed the Anti-Corruption Strategic Guiding Framework for Kenya’s Justice Sector, which we launched on March 25.

This framework sees corruption as an institutional and systemic problem that distorts access to common goods, hampers accountability and institutionalises inequality. It sees corruption in the justice system as much more than a legal or administrative problem, but rather one of the greatest existential threats to our social, economic and political well-being. Unless we stop it once and for all, we may leave behind no nation for our posterity.

Anti-corruption laws

Kenya enjoys an enviable complement of anti-corruption laws and agencies. The Constitution provides a robust integrity and accountability framework anchored in Chapter Six. Statutorily, there is the Anti-Corruption and Economic Crimes Act and the Bribery Act. Institutionally, agencies such as the Ethics and Anti-Corruption Commission, Office of the Director of Public Prosecutions, Directorate of Criminal Investigations and the Judiciary have been vested with the mandate to combat corruption. So why have we failed to prevent it?

The answer, as outlined in the framework, is because corruption penetrates deep into our culture, value system and governance infrastructure. Corruption has been normalised, concealed and, in some cases, rationalised. Laws are therefore not enough; we must transform values and behaviour at all levels of society.

Corruption elimination must become a whole-of-government, whole-of-society endeavour. It requires Executive, Legislature, Judiciary, independent commissions and offices, county governments, civil society, private sector entities, religious organisations and, above all, citizens to collaborate.

Kenyans must say no to corruption, regardless of how you choose to define it. They must understand that every bribe received or given is theft from the common pool of national resources. The mwananchi must be empowered to see that corruption is a crime. Whatever you choose to call it—a token, a tip, a facilitation fee—it is extorting, illegal and not acceptable.

The framework calls on all Kenyans to rise up against corruption—because sovereign power resides among the masses, and they must take this power from the clutches of the corrupt networks.

Court integrity committees

In the Judiciary, we have taken a zero-tolerance stance against corruption. This commitment is embodied in practical institutional arrangements. All court stations now have court integrity committees composed of stakeholders to identify corruption risks, promote ethical practices and recommend prevention measures. We have the Office of the Judiciary Ombudsperson and a Judicial Service Commission as independent recourse for the public to lodge complaints that are then investigated and determined transparently. We have also established confidential hotlines to report bribery and unethical practices within courts.

Besides institutional reform, the Judiciary has also asserted itself forcefully against corruption in our jurisprudence. For example, in Sehmi & another vs Tarabana & 5 Others, the Supreme Court grappled with the issue of integrity in the context of land administration and held that even the doctrine of innocent purchaser for value does not shield property interests acquired in an unprocedural manner. This case conveyed the clear message that improprieties will not be tolerated by our courts.

We have also had judgments whereby courts have applied Chapter Six of the Constitution to assess the fitness of individuals for public office, and held that public trust is incompatible with unresolved integrity concerns. Our courts have not bowed to technicalities or political convenience to protect those who are faced with economic crimes.

The Judiciary’s stance is clear: the corrupt will not have a safe haven among us, and we will not aid and abet the same. But the bigger message is that if corruption is a crime against humanity, then the fight against it is a moral, legal and patriotic necessity that requires boldness, vigilance, and unity of purpose.

The writer is Kenya’s Chief Justice.