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RESTORING PUBLIC CONFIDENCE IN KENYA’S DISCREDITED, CORRUPT, INEFFICIENT AND OVER BURDENED JUDICAIRY: THE JUDICIAL SERVICE COMMISSION’S AGENDA FOR REFORM.
By
Ahmednasir Abdullahi, LL.B (Hons) Nrb, LL.M (Cornell), Advocate of the High Court of Kenya, LSK Representative in the Judicial Service Commission of Kenya.
August 2011.
Introduction.(1)
The Kenyan judiciary has in the past four decades transmuted through various phases of evolution that are in terms of uprightness or the level of stooping is typically Darwinian. These are the lost decades of the Kenyans judiciary. The year from 1980s to 2003 provide thematically the broad spectrum of a judicial prism that captures these interrelated features that define the Kenyan judiciary and shows its composite aggregates. Corruption and the ritual of selling of justice as an economic commodity to the highest bidder has in the process became a defining feature of the Kenyan judiciary.(2) These decades were characterised by rampant corruption and a blatant refusal on the part of the judiciary to enforce the fundamental rights of individuals. In the process the judiciary’s adopted a two prolonged parasitic policy where on the one hand is subserviently in subordinated itself to the executive while on other hand it was literally sucking the blood of the Kenyan people. (3)
The political class and especially the executive arm of government had during the lost decades maintained a frightening grip over the judiciary (4). The judiciary was also grossly understaffed as a deliberate governmental policy on the part of the executive to emasculate the judiciary as a counterforce or check on executive transgressions against the Kenyan people (5). These three interrelated features of the Kenyan judiciary overtime contributed to a gradual loss of faith in the judiciary, spurred agitation to radically reform the Kenyan judiciary and in away fundamentally fuelled the broader national clamour for a comprehensive constitutional reform in which the judiciary was target for special considerations.
Following the election of president Mwai Kibaki in December 2002, his government through the Justice Minister Karaitu murungi and the newly appointed chief justice Evans Gicheru addressed the three shackling factors that almost led to a near total collapse of the judiciary. First, the new chief justice asserted judicial independence in a manner that was hitherto unheard of in Kenya. Justice Gicheru’s tenure established a policy in which the judiciary severed all connections to the executive arm of government and ended its enduring political cohabitation (6). This was greatly helped by a deliberate policy on the part of the executive not to interfere in the affairs of the judiciary.
Second, the government encouraged and the Chief justice undertook what was famously called the radical surgery of the judiciary in which 26 judges of the High Court and the Court of Appeal retired from the judiciary on impropriety allegations. Third, the government increased the number of judges especially in the High Court in order to address the shortage of judicial staff.
The above measures mitigated the historic malaise that afflicted the Kenyan judiciary but failed to address in a fundamental manner the deep rooted and systemic failures of the judiciary. This was principally because the measures undertaken were principally as a result of temporal political goodwill on the part of the executive and were not the result of well thought out enduring policies or even statutory or constitutional readdress of the shortcomings of the judiciary. Institutionally, the judiciary refused to come to terms or admit how widespread and deeply entrenched the problems it faced were. This failure to appreciate the magnitude of the problems greatly undermined the feeble remedies proposed and implemented by the executive.
The final solution to all the problems facing the judiciary was finally administered when the Kenyan people in August 2010 ratified through a national referendum a new constitution that radically reconfigures the judiciary. The judiciary was specifically targeted and the hope was that Kenyans could finally have a judiciary that is free of corruption, efficient, accessible, answerable to their needs and worthy of their trust and respect.
The constitution addressed the historic shortcomings of the judiciary as an institution through a number of ways. First, it constitutionally elevated the judiciary to be at par with the executive and the legislature. The constitutional parity of the three arms of government freed the judiciary from the manipulative grips of the executive. The constitution also created institutions like the Judicial Service Commission (JSC) upon whom the affairs of the judiciary were now exclusively entrusted.
Most importantly in order to address the issue of corruption and all historic grievances ordinary Kenyans have against members of the judiciary, a vetting Board has been created through constitutional and statutory provisions that will vet the suitability or otherwise of all judges and magistrates that were in the employment of the judiciary before the promulgation of the constitution on 29th August 2010. (7)
Managing the Affairs of the Judiciary and the Role of the Judicial Service Commission: a New Paradigm.
The JSC is a creation of article 171 of the constitution. This article gives the composition of the JSC. It is important to note that the Chief justice is the chairman of the JSC. In addition the Supreme Court, the court of appeal, high court and the magistracy have one representative each in the JSC. The president makes three nominations to the JSC. One is the Attorney General while the other two are members of the public who are not lawyers. The Law Society of Kenya has two representatives and the Public Service Commission has a single representative.
In the short terms and especially during this period when the judiciary must be compulsorily reformed and having in mind the vetting process that is to be undertaken in the near future, the skewed representation of the JSC in favour of members in the judiciary is extremely dangerous. With half the members of the JSC, the judicial officers have the controlling voice in the JSC, and in the process, obstacle to the reform process can be engineered through the JSC. Luckily, some of the members of the judiciary representatives especially the chief justice(8) and the High Court representative (9) are reform minded individuals who are committed to judicial reforms.
Article 172 of the Constitution sets out the functions of the JSC. Most importantly and in a very radical departure from the past, it is now the mandate of the JSC to recruit all cadre of justice including the chief justice. It also has the mandate to “review and make recommendations on the conditions of service” for all judicial officers. The training of judicial officers, receipt of complaints and both the promotion and disciplining of judicial officers are now the sole mandate of the JSC.
The Judicial Service Act 2011 provides a more comprehensive outline of the mandate of the JSC and provides in great detail how that mandate is undertaken and executed. Both the Act and the Constitution play pivotal roles in addressing both the historic failures of the judiciary and chart a progressive path forward in terms of accountability, efficiency and people centred institution.
Constitutional and Statutory Measures that Redeem the Judiciary.
(a) Judicial Independence. Both the Constitution and the Judicial Service Act create measures that not only give the judiciary complete autonomy but also put in place process and procedure that enhances that independence. Article 159 is the starting point. In 159(1) it states:
“Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this constitution”.
This article in light of the enduring historic struggle to reform a corrupt and easily manipulated judiciary heralds a seismic shift in terms of putting the people at both the helm of the institution and as the substratum of the judiciary. In both instance, the people are the only entity that gives legitimacy and to whom ultimately the courts are responsible.
The independence of the judiciary and judicial officers is further fortified and indeed expounded upon in Article 160(1). It reads:
“In the exercise of judicial authority, the judiciary, as constituted by article 161, shall be subject only to this constitution and the law and shall not be subject to the control or direction of any person or authority”
The Judicial Service Act in section 3(a) states that the judiciary “shall uphold, sustain and facilitate a judiciary that is independent, impartial and subject only to the provisions of the constitution and the law”.
The emphasis and importance placed on judicial independence by both the Constitution and the Judicial Service Act is principally informed by the role played by the judiciary in its historic betrayal of the aspiration of the Kenyan people. The judiciary especially during the agitation for multi-party democracy has decisively cast its support and fate with the government and continuously acted a bulwark against the progressive forces that wanted to reform the country.(10)
The JSC is committed to ensure that the judiciary plays its rightful role as set out in the Constitution. We are also very a live to the fact, that the majority of the political actors in the country are remnants of the KANU era and thus pose great danger during this era of implementation and internalising of the values of the new constitution. Macharia Gathio rightly captures the danger posed by these forces in trying to scuttle the reform process, when he said:
“The orphans and remnants of Nyayoism are not amused and are already signalling that they will mount a vicious fight back to ensure a more pliable nomination for the top job in the Kenyan judiciary. For them it is not merely that Dr Mutunga is an outsider, but one who represents a clear and present danger to their very existence. Reactionary elements from the Moi regime have thrived and prospered in president Kibaki’s administration because a conservative mindset would not countenance real change. The barons of mega corruption, economic sabotage, and crimes against the people were pleasantly surprised that the transition from Moi to the kibaki regimes didn’t at all subset their comfort zones. They had the political protection and a friendly judiciary that would not demand a accounting for their obscene wealth, land grabbing and promotion of ethnic cleansing as a political tool. They simply cannot countenance a chief justice who might want to create a brave and independent judiciary that will operate without paying obeisance to the mighty and powerful”(11).
Since the judiciary is the only properly reformed arm of government, the JSC must ensure that the right people staff the judiciary. Judges for the old political and legal order will be vetted and wedded through the vetting process. In the long term, if Kenyans play their rightful role as expected of them by the Constitution, then the judiciary will finally get rid of all the corrupt and incompetent judges who previously betrayed their trust, frustrated and even scuttled their wish for a judiciary that is free from the vices of corruption and political interference.
The dream for a better Kenya and an accountable judiciary can only be attained if we have an independent judiciary that is free from both the corrupt influences of the individual and the political control of the politician and the executive.
(b) Transparency and Accountability.
The Constitution and the Judicial Service Act compel the JSC to ensure that the judiciary is run in a transparent and accountable manner. Further the judiciary is under the law accountable only to the people. Transparency has a number of derivatives. First, in the recruitment of judicial officers, the Constitution and the Judicial Service Act mandatorily requires the process to be open to the public, and that the process is done in a competitive and transparent manner.
Article 172(2) reads as follows
“In the performance of its functions, the Commission shall be guided by the following:
Competitiveness and transparent processes of appointment of judicial officers and other staff of the judiciary; and
The promotion of gender equality.
It is thus clear that in terms of even the recruitment of both judicial officers and non-judicial staff, the JSC must strictly comply with the criterion set out in the Constitution. The JSC is a live to the delicate balancing act it has to do in the recruitment of judicial officers. It is also a live to both the gender issues and regional balance when it comes to such recruitment. It must however be appreciated that the primary consideration for appointment remains competitiveness.(12)
Part V of the Judicial Service Act sets in greater detail the procedure for the appointment of both judicial and non-judicial staff of the judiciary. The First Schedule of the Act in great detail expounds upon the procedure that must be adhered to during the recruitment process(13).
It must be appreciated that the JSC has followed the procedure set out in both the Constitution and the Act when it recruited the chief justice, the deputy chief justice, and judges of the Supreme Court and judges of the High court. In fact we set an example to the rest of the world, as Kenya is the first only country that has recruited a chief justice through an open and public participatory process(14).
(c) Fighting Corruption.
The JSC has a zero tolerance policy towards corruption in the judiciary. Both the JSC and the office of the Chief Justice appreciate the danger posed by corruption in the administration of justice. Corruption in the judiciary is not just an issue of mere perception, as some conservative members of the judiciary want us to believe. It is real, widespread and a symptom of a very entrenched culture. There is so far no evidence that the impending vetting process and the new constitution has forced members of the judiciary to either reduce the incidents of corruption or completely stop the practise of the vice.
The JSC will address the cancer of corruption in the judiciary in a number of ways. First, the Chief Justice has for the first time created the office of Judiciary Ombudsperson. This office will receive and filter all complaints or grievances the Kenyan public have against the judiciary as an institution or against specific members of the judiciary. This office will regularise and streamline the complaint and disciplinary procedures of the judiciary as an institution.
Second, the JSC has created a four members team who are non-judicial staff to liaise with the Vetting Board. This committee will be completely independent from the other members of the Commission. It is not subject to the control, direction or advises form the JSC.
This independence is important as it ensures that this subcommittee can on its own motion or discretion either support a given judge who appears before the Vetting Board as to whether he should be cleared or convicted on the charges facing him/her. The sub-committee on its motion can bring charges against a judicial officer where evidence is available to indict a given individual.
Third, the JSC has adopted a policy that tries to ensure that during the recruitment for judicial officers, the integrity of the candidates is of paramount consideration. Where there are credible evidence or even reasonable suspicion, the JSC, as a policy will not recommend individuals with baggage for appointment as judges. This policy is very important in that if we can keep miscreants from becoming judges in the first place, then we can help reduce corruption significantly in the judiciary at the point of employment.
Appointments of judges in the past were purely done on political, regional and ethnic consideration. In some instances politicians who failed to make it back to parliament were appointed judges as a soft landing measures. It was never the resume of the candidate or his background as a profession that played in role in determining his suitability or otherwise.
Four, fighting judicial impunity. Here the JSC has made a policy that where a given judge has a history of constantly getting it wrong on law, or where his judgment leaves a scare on our conscious or outrages our sense of common decency and modesty, then the JSC will take up the matter and interrogate and investigate the same to its logical conclusion. It is no longer acceptable for a judge to state that he has made a judgment and the aggrieved party should appeal the decision. The days where judges could write judgments that deliberately subvert the law are gone for good. Kenyans who are victims of such judgments must come forward and seek redress through the JSC. In fact the JSC will use the right to interrogate judgments as an important tool in the fight against corruption in the judiciary.
Increase the Number of Judges and Magistrates.
The Kenyan Judiciary is grossly understaffed. It has 44 High Court Judges and 10 Judges of the Court of Appeal and 346 magistrates. These judicial officers serve a population of 40 million. It is thus impossible for the judiciary to discharge its functions and deliver justice in line with article 159 of the constitution when it is grossly understaffed. In order to address the lack of staff, the JSC must undertake a massive recruitment of judicial officers in the country.
It is principally because the judiciary is understaffed that there is so much backlog of cases in our courts. The courts as result of the low numbers of judges have not been able to quickly dispensed Justice to the ever-increasing number of Kenyan litigants.
The JSC will shortly recommend to the president the appointment of a new 28 judges to be appointed as high court judges. This will greatly help address the acute shortage of judges that has hampered the dispensing of justice.
The JSC has further initiated and indeed petitioned the office of the Attorney General to amend the Judicature Act, which at present limits the number of High Court judges to 70, and 15 judges to the court of appeal. Once this limitation is repealed, the JSC intends to appoint about 120 judges of the high court, and take the numbers of the court of appeal to 30 members. Similarly the numbers of magistrates will be greatly increased.
A component of increasing the number of High Court judges is to ensure that justice is taken closer to the people of Kenya. It is now a legal requirement that all the 47 counties in the country must have high courts. In this regard, and very soon there will a high court opening soon in each of the 47 counties in the country.
Welfare of Judges and Magistrates and all Judicial Employees.
The welfare of judicial employees is closer to the heart of the JSC. Under article 172(1)(b) the JSC is mandated “to review and make recommendations on the conditions of service of judges and judicial officers others their remuneration”. The JSC has already started the process of agreeing on the remunerations of the judges and will shortly forward the same once the relevant commission is constituted under the constitution.
The Judiciary Fund and Financial Autonomy.
Financial autonomy for the judiciary is a very important component of judicial independence. The judiciary has over the years tried to free itself from the financial control of the executive. This prayer has finally been answered by the new constitution. Article 173 of the constitution creates the Judiciary Fund that will be administered by the chief registrar of the Judiciary.
The Fund is a charge on the consolidated and frees the finances of the judiciary from the control and manipulation of the executive arm of government. Under Article 173(3)(4) the Chief Registrar prepares the annual budget of the judiciary, places before the JSC for approval and then transmit it to parliament for approval. This has done away with the previous process in which the Treasury could ultimately decide on the budget of the judiciary.
CONCLUSION.
The constitution has mercifully freed the judiciary from the control of the executive and all forces that previously exerted one influence or another. The JSC will play its constitutional role in ensuring that the principles that underpin Article 159 of the Constitution are attained for the benefit of the people of Kenya.
We must be very vigilant and well prepared to face the impending counterattack that will soon launched by the judges who face the full wrath of the Vetting Board. We must also ensure that the Vetting Board does not undertake a whitewash and cleansing exercise. They are many judges and magistrates who are scared to death as they see from far an approaching tsunami of judicial reform and transparency. They have nowhere to run or hide. Their closets are overflowing with skeletons of various age and era. It is time to sweep them a side and start a new beginning for the sake of the people of Kenya.
Endnotes
. The views articulated in this paper are personal but are nonetheless in line with the mandate given to the author by the members of the Law Society of Kenya, whom the author represents in the Judicial Service Commission. The views here are not that of the Judicial Service Commission. However, the same in a way are my articulation of issues as already made before the JSC or will be made in future.
2. The Kenyan judiciary to its credit has over the years acknowledged the rampant nature of corruption in the courts. A number of chief justices have variously appointed internal committees to report on the level of corruption and make recommendations on how to address the vice of corruption. These reports include, the report of the committee on the administration of Justice (the justice Kwach report), 1998. The report of the integrity and anticorruption committee of the judiciary (the justice Ringera Report), 2003, The Report of the subcommittee on the ethics and governance of the judiciary (the justice Onyango oteino Report) 2006. The report of the Committee on ethics and governance of the Judiciary (the Justice Kihara Kariuki Report), 2008.
3. For the deliberate refusal by the courts to enforce the bill of rights in the constitution, and in the process to allow the government act as it pleased in relation to violations of human rights in 1980s and 1990s, see Kathurima M’Inoti, The Reluctant Guard: The High Court and the Decline of Constitutional Remedies in Kenya, in KIVUTHA KIBWANA(ed), CONSTITUTIONAL LAW AND POLITICS IN AFRICA: A CASE STUDY OF KENYA, 550-575 (1998).
4. For the proposition that the judiciary was a powerful tool at the disposal of the executive, especially when Kenyans were agitating for reforms and the widening of the political space in the 1990s, see generally, Kathurima M’Inoti, The judiciary and Multi-Party Politics in Kenya, 1990-92, 535-549, in KIVUTHA KIBWANA, Supra note 3.
5. The failure on the part of the Kenyan judiciary to fairly arbitrate disputes that are political in nature led to the refusal of some politicians in the general elections of 2003 to seek the courts’ intervention in the hotly contested and disputed presidential elections between the incumbent Mwai Kibaki and the challenger Raila Odinga. Instead the country witnessed its worst violence, leading to the death of 1200 people in violent clashes between some ethnic communities and the security agents of the state. See, Human Right Watch, Kenya: Ballots to Bullets: Organized Political Violence and Kenya’s crisis of Governance, Vol 20, No 1(A), March 2008. It is thus quite obvious that they are a strong nexus between the confidence people have in their judiciary and general peace and prosperity prevailing in a given country. For this, see generally, Ibrahim F.I. Shihata, The Role of Law in Business Development, 20 FORDHAM INT’L. L.J, 1577(1997). See also, Dennis Byron, Fix the Judiciary if you Want a Stable Nation, The Nairobi Law Monthly, Vol. 2 Number 8, August 2011, 62-65.
6. For an analysis of the efforts and measures implemented by the Government of Kibaki especially during the first two years of his tenure, see generally, Lucy Kambuni, Judicial Reforms in a Cross-Roads, 60-73, in T.O OJIENDA(ed), THE DAWN OF A NEW EAR: CONSOLIDATING KENYA’S DEMOCRATIC GAINS, (2004)
7 The Vetting of Judges and Magistrates Act Number 2 of 2011 was enacted by parliament to facilitate the vetting of judges and magistrates. Under section 18, judges and magistrates will be investigated on a wide range of issues in order to determine their suitability of otherwise.
8. As clearly shown by the appointment of the chief justice Dr Willy Mutunga, and as time goes by, depending on the choices made by the Judicial Service Commission, the membership of the JSC in the long run will be dominated by reformed minded individuals who are very keen in overthrowing the old discredited judicial order. Very soon the Supreme Court will elect a representative in the JSC and that will boost the ranks of reformers in the JSC. A new Attorney General will be appointed before August 27th, 2011 since Amos Wako’s tenure constitutionally expires and depending on the reform credentials of the person, reformers may dominate the commission in the very near future. See, After 20 Years, Wako Does Last Week as AG, Daily Nation, page 1, August 15, 2011.
9. Justice Isaac Lenaola who is well regarded in terms of his reform credentials represents High Court judges in the JSC. He won election to represent judges of the High Court when he defeated Justice Aggrey Muchalule.
10 For a historic appreciation of the subservient role the judiciary played during the multi-party agitation in 1990s, see generally, Makua Mutua, Justice Under Siege: The Rule of Law and Judicial Subservience in Kenya, 23(1) HUMAN RIGHTS QUARTERLY, 110(2001).
11. Macharia Gaitho, Reformist Chief Justice Should Expect Vicious Fight From Nyaoism Remnants, Daily Nation, May 17 2011 at page 12.
12. This issue of gender balance is currently before court. FIDA has filed a case in the High Court challenging the appointments made by the judicial service commission with regard to the Supreme Court. It is their contention that the appointment of two women and give men to the court contravenes article 27(8) of the constitution, which reads: “in addition to the measures contemplated in clause (6), the state shall take legislative and other measures to implement the principle that no more than two-thirds of the members of elective or appointive bodies shall be of the same gender”.
13. The first schedule, part II of the Judicial service Act sets out in great detail the process that must followed whenever a vacancy arise for judicial officers in the judiciary. It guides the recruitment process right from the advertisement for the job, the criteria for short listing, review and investigation of the candidates’ background, the interview process, evaluation of the qualifications of candidates and finally the nomination of the candidates. Part VI addresses the post nomination process.
14. See Aurelio Rebelo, JSC Sets Pace for Adherence to Provisions of the Constitution, May 23-29, 2011, The EastAfrican at page 10
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