Stop corruption or fresh vetting, severe punishment, awaits you, judges warned

I have never understood why a judge who is very well paid and has security of tenure should indulge in a practice so demeaning at both professional and personal levels. The driver of corruption cannot therefore be poverty unless it is the poverty of self-respect and honour, writes WILLY MUTUNGA

The Annual Judges Colloquium (AJC) has become an important institutional custom where judges of the superior courts review and reflect on their performance in the year. This year’s AJC is even more critical. This is because we are gathered here to reflect on five years of the 2010 Constitution and more significantly, on what role the Judiciary has played in such an important transition.

As the first generation of judges under the new Constitution, we must recognise that the decisions we make in the early life of this Constitution will shape the jurisprudential, political, social and economic path of this country for generations to come.

Our interpretative duty must avoid creating defects that shall scar the democratic and constitutional body politic of this nation for life, sapping away her confidence, and endangering the fulfilment of its economic and political promise as encapsulated in the Constitution.

This forum affords us an opportunity for an honest intellectual introspection -- affirming the positive contributions we have made, identifying the judicial infirmities we may have created, and correcting where we may have fallen short.

DASH TO COURTS

In a country so beloved of conflict and division, it has been to the Judiciary that the country has turned over the last five years to resolve conflicts. We have done so in a manner consistent with the Constitutional provisions and, in effect, have secured the nation’s social stability. Kenyans have taken to litigating everything, and with the increasing collapse of the culture of dialogue, the dash to the courts by individuals and institutions has created the impression that this is a country governed by the courts.

We have risen to the occasion, rendered decisions which, even when not always universally acclaimed, are decisions nonetheless based on our understanding of the facts, the evidence as presented, and applicable law.

Judicial proceedings tend to be adversarial and universal acclaims of their outcomes are few and far between, not just here in Kenya, but globally as well.

Even Benches sometimes are sharply divided but it is in majority decisions, concurring and dissenting judgments and opinions, and the resultant public and professional debate around those judgments that the development of the law occurs.

COMPETING INTERESTS

There is no doubt that taken together, the Judiciary has, through its decisions and conduct, been bold in entrenching the rule of law, reclaiming its independence, and earning its respectable place as an organ of state of consequence.

We must try to keep it that way, making the Judiciary a natural and trusted arena for arbitrating conflicting interests. For a Constitution so progressive, a public so eager and hopeful, and an elite so uncomfortable and disoriented, the Judiciary has striven to find an equilibrium, balancing competing interests using the Constitution.

To claim that we have been perfect would be a lie, but the jurisprudence of the last five years has, in many ways, reinforced the Constitution. It is the recognition of this absence of perfection that has informed my deliberate positioning of the Judiciary through the revival of the Judiciary Training Institute (JTI) as a learning institution.

JTI has done a commendable job, and in this gathering, we have another learning moment where we shall also benefit from the robust and necessary criticisms of fellow Kenyans who have been observing us from the outside. We must be ready to listen and take that which shall make us better execute our mandate.

I want to congratulate all the judges and courts for making significant contribution in advancing Kenya’s constitutional cause, especially in a difficult political environment.

DIVISIVE ISSUES

Globally, it is courts that adjudicate and arbitrate on socially and politically divisive issues. And that has its costs.

But for as long as courts do this guided by the law, in strict fidelity to the professional ethics of the judge, and with an eye on the real public interests, the attacks on the institution are easy to take. As many examples in the world show, a Judiciary can choose to be a force for a progressive cause or an instrument for forces of conservatism.

And for me, the more I read the Constitution, its strict interpretation can only lead to just one choice – progressive cause. What one might call a conservative interpretation is, in my view, sheer connivance – a pandering to the retrogressive forces that a very progressive Constitution sought to overwhelm and neutralise.

Although the Judiciary has done well overall, one of the issues that seems to be seeping back, and which I wish to raise directly with you is corruption. It worries me, as it should worry you, that increasingly there are reports on an upsurge in this immoral scourge. Corruption must not be allowed to fester in the temple of justice.

I have never understood why a judge, who is very well paid, enjoys security of tenure, has highly concessionary mortgage and car loan facilities, has an excellent medical cover, has probably had a previously successful career as an advocate or scholar for over a decade, should indulge in a practice so demeaning at both professional and personal level.

POVERTY NOT DRIVER

The driver for corruption cannot therefore be poverty unless it is the poverty of self-respect and honour. Bribe taking is one of the most despicable expressions of self-disrespect that I have ever seen and it must stop. Corruption corrodes personal esteem, erodes public confidence in the institution and earns you nothing but disrespect and disdain from those who are corrupt.

The radical surgery and vetting exercises were traumatising experiences for most of the judges, and I am sure no judge would like to go through that experience again.

But if we do not take a personal and professional stand against this vice; handle ourselves with integrity -- if we continue to cover up for and protect colleagues mired in this vice, and allow them to tar everybody else; if we continue engaging in this immoral sport, then I can assure you vetting will be back -- and this time, in a more vicious form than the previous one.

Doing the right thing as a judge is not a personal gift to the Chief Justice. It is a moral duty and a professional obligation.

The JSC takes no pleasure in subjecting judges to disciplinary processes but will not flinch in acting tough on these integrity concerns. The JSC is most perturbed by the number of complaints against judges and magistrates.

It has a constitutional duty to act on these matters and shall remain true to this mandate and exercise it in a fair and proper manner.

DUTY TO PROTECT

The bar of public accountability has risen and we must accept that this is the reality of the new Kenya. And when the public writes to me to complain about delayed cases, and I make follow up inquiries, I expect the judges to respond. This is not interference with decisional independence; it’s about accountability on our service delivery standards.

There is a noticeable increase in the number of public complaints about judicial conduct and we must face the matter head on. JSC understands that it has a duty to protect judges from petty harassment as an important part of fighting for the independence of the Judiciary as mandated by the Constitution.

However, JSC must not and cannot be seen to protect judicial officers from complaints that have merit such as delayed rulings, absenteeism and laziness.

The accountability requirements demand that we collect and analyse data. From October, the Daily Court Returns Template (DCRT) will be the official internal instrument for collecting data.

Every judicial officer will be responsible for his or her returns. I will be re-issuing a Memo to guide this process now that all the instruments have been prepared and we are fixing our legendary ICT problems.

This is what will be the sole and primary instrument for collecting data for the performance understanding reports which will be rolling out in earnest in the new term.

CONSTITUTIONAL DISPENSATION

The Constitution and the JSC Act require us to expand justice to all parts of the country. Every part of this country has a right to judicial services and it is a scandal of historic proportions that segments of this society, in this time and age, can publicly refer to other Kenyans or regions as unimportant, much in the same way as the French divided Chad into “Useless Chad” and “Useful Chad”. The discourse of “high potential” and “low potential” is dead in this new constitutional dispensation and the Judiciary will not be party to marginalisation of any part of Kenya.

It is unconscionable that some Kenyans still have to travel 800 kilometres to their nearest High Court and this is plainly unacceptable. How are the police, who are in each and every part of this republic, and the DPP, which has also expanded to every county, expected to take murder suspects to court within the constitutional time limits of 24 hours if the nearest High Court is 800 kilometres away in a rough and insecure terrain?

Therefore, in consideration of caseload data, the need to reduce long distances, and the need for decongestion, we have established 14 new High Courts. And as of today, out of the 47 counties, only 13 do not have High Court stations.

HATED AND FEARED

We shall move to establish these as well in the next round of recruitment that JSC is about to embark on.

In establishing these courts, I have consulted widely -- both internally and with other arms of government, including the Council of Governors and NCAJ agencies that have a real need for these services. Courts do not belong to us as judges or advocates but to the public and we have a duty to take these institutions and the services they offer to the public where they are.

We must accept to be criticised -- wrongly or rightly. But when we deal with the public so insensitively, we hurt the institution, the law, the cause of justice and public confidence all in one swoop. I don’t think we applied for these jobs so we can be hated or feared. We wanted to serve in honour.

Lastly, I wish to reiterate that we need to collectively fight for our independence from the Executive, Parliament, corporate interests, civil society interests, our families and friends and, above all, our communities.

The Constitution has granted us independence. We must not be the ones to undermine it by submitting this great institution to the market place of political transaction but rather advance it by availing the institution to the service of the Kenyan people.

Dr Mutunga is the Chief Justice and President of the Supreme Court of Kenya. This is an edited version of a speech he delivered at a judges meeting in Mombasa this week.