CJ proud of ‘radical surgery’ and would do it all over again

In the first interview in his eight years as head of the Judiciary, Evan Gicheru answers all the hard questions about his impending departure, corruption in the court system and swearing in President Kibaki at State House while Kenya burnt. He speaks to Ahmednasir Abdullahi, publisher of the newly launched Nairobi Law Monthly

The tenure of recent occupants of the office of Chief Justice has been quite short but you have served about eight years. What would you say are the highlights of your time in office?

Gicheru: One of the things I think I look back and feel proud of is the surgery that we did at the beginning of my tenure. I think you know about it very well isn’t it? I had been in the Judiciary for quite a bit of time and when I came to this office, one of the problems that compromised the delivery of justice was corruption.

There was a time that you could not get anything unless you bribed. And I came at that point in time when the entire institution was rotten and you remember quite a number of judges went away and I was left with a skeleton staff and to get enough judges to run the judiciary was a very difficult task.

But we thank God we’ve made it without the institution collapsing. That is the landmark. It happened at the very beginning, but it remains the key highlight. When I look back, I thank God for it because it went well despite the fears that we had and I think as of now, the institution is properly run because every two years we actually repeat the same thing — getting a commission or a committee to go round and investigate how the Judiciary is performing and whether corruption is coming back. That was very important.

If you went back to 2003, would you do the radical surgery again?

I would do the same thing. It helped. This place was rotten, it was very rotten and I think that surgery, despite the difficulties it brought, was worthwhile. And I think if corruption came back when I’m still here, I would do the same thing.

Many of your predecessors have been mentioned with regard to corruption but you have managed to escape such charges. What do you have to say about that?

Well, I think the only thing I can say is that the almighty God has helped me not to have an appetite for more than is actually my due. What I’m paid for the job I’m doing is enough for me. And in my existence and even in my service since I joined the Attorney General’s office around the early 70s, up to this moment, I have never had the urge to get something (extra) for the services I’m rendering to the people of Kenya.

We now have a new constitution, a new dispensation and it creates a Supreme Court, expands the Judiciary. Give us your take on that.

Oh, I’m for that. We need a Supreme Court. A court that is slightly higher than the Court of Appeal because, maybe I should not be saying this, but there are times that even the Court of Appeal compromises justice. And I think we need a higher authority that can rectify the kind of problems that we may be facing or may have in the Court of Appeal.

What of the creation of a Judicial Service Commission that has input from the Law Society of Kenya?

That’s a good thing. I think we have a member of the Law Society of Kenya even in the JSC now. I think there is nothing new really. We need somebody from the law society who can give his or her input in that body.

You have hardly sat on the bench in Nairobi as a judge in your eight-year tenure as Chief Justice. Why is that?

Well, there has been no reason for me to do that. I would do that if there was a matter that is very weighty and, I think in my tenure, there have been no such weighty matters that require a Chief Justice to join the Court of Appeal.

Your critics say you have undergone a transformation from the time when you were a judge, when you were very approachable, to being very inaccessible as Chief Justice.

I don’t know because I don’t sit (outside at the reception) there. The people who sit there are the secretaries. I’ll never give directions that nobody should come to my office. All I have said is that if anybody comes, I should be told who wants to see you. I remember when I was a judge of the High Court that door used to be open; anybody could pop in at any time. But you never know who is your enemy and who is your friend. So, rather than leaving the door open so that anybody can come in, I said the only access to these chambers would be through the secretary or security officers.

From the early 90s, the Law Society of Kenya always thought you were the best candidate for Chief Justice. Many times, they suggested that you were the right person for the position. In 2003, when you were finally appointed, the law society welcomed the appointment, saying it was the right thing. Why has your relationship with the LSK deteriorated?

When I came to this office, I did not have anybody to tell me this is what is done or when issues of this nature arise, this is how you deal with them. There was a lot of free movement and I did not know who was a friend and who was an enemy. So I decided that matters that do not concern the CJ could be dealt with by the administrative officers.

Somebody will come all the way from Kitale or wherever to the Chief Justice’s office to enquire about a case which has been pending. That is not my responsibility as Chief Justice because there are other officers who should be dealing with that kind of thing. Not every person must come to the Chief Justice’s offices.

Other officers in the Judiciary should be able to deal with the minor things. That is why various people are responsible for various things in the Judiciary. When they are not able to deal with those particular problems, they can bring them here. We discuss them and if we can’t solve them, we seek assistance elsewhere. Otherwise you will have to be an administrator, a registrar, I mean you can’t do that.

There is this problem that lawyers had in Meru, Eldoret, Kitale and Nakuru. It took you quite some time to resolve…

I can’t remember taking a lot of time. When it was brought to my attention, I immediately dealt with it. But one of the things that you have to understand is that we have competent officers at various stations. And I think it is important for us to give them opportunities to wrestle with some of these problems because they can never grow unless they learn to deal with problems before them. So, unless they are not able to deal with a problem and this is brought to my attention, then I’ll decide either to go and sort it out there or it is brought here.

As the CJ, what is your reaction when members of the law society want to decide on the posting of judges? Do you think it is right for them to say we can’t go to judge A’s court?

If they think something is happening, the best thing of course is for them to come to me and we discuss it. If they express their opinions openly, there is nothing wrong with that. It may appear as if the judges are being whipped in the streets, but the thing is, if you are posted to any particular station, you must perform.

If you do not perform and the Judiciary or Chief Justice do not take action against you, they (lawyers) are entitled to complain and even go to the streets. There is nothing wrong with that. But of course, the best way is to follow the proper procedure of bringing those particular complaints to the Chief Justice.

For instance, if lawyers are dissatisfied, they can protest to their chairperson and from there they can bring the complaint to the Chief Justice. But the best thing is to bring the complaint through the formal channels and we discuss it.

You have been accused by some politicians of rushing the process of swearing in the President and helping fan the flames of the violence in 2008?

The thing is, I don’t rush myself; it’s not me who goes to them and say I’m going to swear you in now. That is not my responsibility. The responsibility of swearing in the President is in the Constitution itself. Nobody else can swear in the President apart from the Chief Justice, isn’t it?

And if we are told, or the Chief Justice is told, we are ready to be sworn in or to swear in the President, who am I to say no? Unless I’m going home. What can I do?

Don’t you think you should have waited a day or two?

A day or two when preparations have been made and the President is ready to be sworn in? Who else can swear him in? Whether I do it today, tomorrow or a month later, it doesn’t make any difference. He can only be sworn in by the Chief Justice. What excuse would I have to say I’m not swearing him in?

If people want to bring petitions, yeah, they can, you can still bring petitions after he has been sworn in. So all those criticisms, I’ve never commented about them because they are petty in my view. My view is that there was nothing wrong in swearing in the President and those who might have been aggrieved have access to courts and if they don’t approach them, they have nobody to blame but themselves.

The new Constitution addresses your office and it says you have to retire in six months. Do you feel unfairly targeted?

I am a judge of a Court of Appeal, so even if the constitution says that I’m going to remain in the Court of Appeal, there is nothing strange about it. The only job I will leave is as Chief Justice. And it will be my decision whether I want to continue as a judge of appeal, which I am, or I just want to go home and relax or do something else.

I don’t think I can say I have been targeted because of the changes that are now happening in this country. It is part of the new order. And I’m also part of it. I don’t think I’m being targeted personally by anyone.

But the Constitution has not said Kibaki or the PM will leave office, it has said the Chief Justice specifically will leave office?

Kibaki and Raila are politicians. I’m not a politician. So you cannot compare me with politicians (laughs). We will follow the Constitution, isn’t it? So if it says I should retire, I will go.

As Chief Justice, as we go into this new dispensation, what do you think are the main challenges facing the Judiciary as an institution?

The Judiciary has one major challenge and that is lack of funds. It lacks a fund that is run by the Judiciary for its own operations.
This idea of waiting for budgets and going to the finance minister for whatever it needs is bad. Actually, it detracts from the idea of independence for the Judiciary because without financial independence, you’ll just be dancing to the tune of the master that pays you.
That does not mean you cannot be independent, but when you depend on these people for funds, that particular relationship is a factor of influence.

What about the modernisation of our Judiciary? This is one of the few countries in the world that does not have electronic recording of submissions...

I think we are doing it now…we had started the process. When we went out of the country, all the courts we saw were electronically run. When we came back, we decided we were also going to do it.

The proposed vetting of judges, is that another radical surgery?

Oh yes it is. I was vetted when I was appointed as a judge and I did not know. In 1982, I went home to the rural areas and my mother and father were asking ‘what have you done? There were people here trying to find out about you, your history and everything’.

I was shocked. When I tried to find out what was happening, somebody told me all these things were done before appointments. That kind of check is very important because you know the person you are appointing as judge. And you can only do that if you go to the place from where he or she came.

Which case stands out for you after all these years?

As far as I’m concerned, any case that came to me was just like any other. I can’t say that a particular case was superior to the other in the sense that I’m a judge of the Court of Appeal and I don’t select particular cases that stand out. It is for other people to think that a particular case or matter takes precedence or is a milestone. That, I leave to others.

But there have been remarkable cases like the contempt case against Tony Gachoka when you had six judges of appeal on one side and you were alone…that’s something you must have given a lot of thought.

We sat all in the case. We discussed. Normally when the judges of appeal have to deal with a matter, (they) go to chambers or come to the chamber of the Chief Justice or the presiding judge and then they deliberate. If everybody decides this is the way they are going to go, you say let them go. And then since you are independent, you can make up your own mind, write your own dissenting judgment.

This is exactly what happened. We sat, we agreed, we talked and then decided that each one of us write his own judgment. Otherwise, in cases where we agree, particularly on minor matters, just one judge will write the judgment and we will all sign it.

But this was a weighty matter. My reason for differing was that you do not deny somebody an opportunity to testify, allow him give evidence and then say he cannot defend himself. That is ridiculous. I don’t know what kind of law they were using. I’m not accusing them but (laughs) it is odd. I said this is crazy. So I had to dissent. As I said, I would probably have found him guilty but he had the right to defend himself.