In A Critical Essay upon the Faculties of the Mind, Jonathan Swift likened laws to cobwebs, “which may catch small flies, but let wasps and hornets break through”. Many Kenyans would agree.
They would think that the fresh flood of claims that the Judiciary is corrupt, together with the salacious details of journalist Geoffrey Kiplagat’s affidavit accusing Justice Philip Tunoi of taking a $2 million (Sh200 million) bribe irrefutably proves this.
And yet, we are now in the fifth year of judicial vetting and it is all of 13 years since the 2003 radical surgery, both of which, the official hype told us, were meant to rid the Judiciary of the incompetent and the corrupt.
Justice Tunoi not only survived both but has since thrived. Therein is the problem: Justice Tunoi’s career — as will shortly be clear — raises enough doubts whether he is suitable to sit on Kenya’s highest court. And that it does, clearly shows that judicial vetting has hardly been the shake-up it was cranked out to be.
Let us begin with Justice Tunoi. As my friend George Kegoro has so comprehensively detailed in recent articles, whatever the verdict on the bribery claim against Justice Tunoi, his past probably argues against his being on the Supreme Court.
In Express Kenya Limited vs Manju Patel, he was artlessly double-sided. On May 21, 2001, in a three-way meeting involving himself, Justice A.B. Shah and Justice Richard Otieno Kwach, they agreed to allow the appeal in this case.
Ten days later, he and Shah had a two-way meeting at which they now agreed to deny the appeal. An understandably piqued Justice Kwach then wrote a trenchant dissent accusing both Justice Shah and Justice Tunoi of lacking integrity.
Chafed by this scolding, Justice Tunoi, incomprehensibly, tried to answer Justice Kwach’s dissent in a letter to the press. Oddly, though it was Justice Tunoi’s name in this letter, it was Justice Shah who delivered it to the press.
Later, Justice Shah had to resign his position, harried by a serious ‘integrity issue’ spawned by his “collusive relationship” with one of the parties in a case that also involved Justice Tunoi, Rai v. Rai. Twice in that case, Justice Tunoi disqualified himself from sitting.
Yet when the same case came before him in the Supreme Court, he refused to disqualify himself, claiming, implausibly, that he could not remember why he had disqualified himself earlier.
More recently, in Mr Nick Salat’s petition on the Bomet Senate seat, Justice Tunoi and Deputy Chief Justice Kalpana Rawal seized on a letter not before the court to make findings on the retirement age for judges, a matter in which they both had an interest, having sued on it in the High Court.
This is the sort of case from which Justice Rawal and Justice Tunoi would have had to withdraw if the issue was properly before them. This so obviously self-serving interloping provoked a sharp rebuke from Chief Justice Willy Mutunga.
He lamented that the majority had run “with extraneous issues” that were neither in the submissions of the parties nor was the issue framed by the court. The point is that Justice Tunoi’s judicial career has been blighted by many imprudent and injudicious mis-steps that question his suitability, whether or not he received a bribe.
If so, why did the vetting not catch these things? The truth is that the vetting of judges and magistrates has not been a very effective means of cleaning up the Judiciary.
The vetting had too many weaknesses, in the way it was designed, how it has been implemented and, in the way those initial problems have been compounded by the judgment of the Supreme Court in the case of the Kenya Magistrates and Judges Association (KMJA) vs Judges and Magistrates Vetting Board (JMVB) & Another last year.
CORRUPT JUDICIAL OFFICERS
First, as designed under the Vetting of Judges and Magistrates Act, vetting was going to catch only a few — never all — of the corrupt judicial officers.
Bribery is a bilateral crime between the giver and the taker. Without immunity to one or the other, to confess that one has bribed a judge is — to use a technical phrase — to make “a naked assertion against one’s own interest”.
An individual who admits that he has committed a crime risks criminal penalties. This is hardly the ideal case for anyone to bring forward evidence.
Corrupt judges and bribe payers are, thus, trapped in a complicitous ‘silence of mutual guilt’ that allows the corrupt to slip through vetting. Unable to get actual evidence of corruption, the vetting board has had to infer bribery from unexplained bank deposits.
To be sure immunity for bribe givers would not have caught all the corrupt either: litigants who got a benefit by bribing would not give it up; those who lost cases after paying bribes would be malicious and judgments procured by corruption would throw the judicial system into a tailspin.
Are such decisions binding? Should they be over-ruled? These are grave issues, but they should have been confronted and not buried.
Secondly, the board was designed to vet, not to investigate. Without the ability to conduct forensic inquiries, the board has been largely passive, depending on information that it receives from whatever sources.
Though it was mandated to make inquiries from such bodies as the Law Society of Kenya, the Ethics and Anti-Corruption Commission, the Advocates Disciplinary Tribunal and the National Intelligence Service, its inquiries often went unanswered.
This, too, is a design problem. Vetting was meant to be, at least in part, a transitional justice mechanism. If so, then it should have had a wider scope for inquiry, perhaps just short of a truth commission since part of its job was to deal with past judicial history with its culture of impunity and entrenched hostility to human rights.
Thirdly, though Dr Mutunga has lamented the return of corruption in the Judiciary, he must also surely see that the greatest blow to judicial vetting is the decision of his court, the Supreme Court, in the case of the KMJA vs the JMVB & Another.
VETTING IN COURT
In 2014, the KMJA challenged the scope of vetting in court. It argued that the board had no power to investigate any judicial conduct happening after August 27, 2010, the day the Constitution was promulgated.
The KMJA asked the court to rule that any judicial officer who had been found unsuitable for conduct after the effective date had been treated unlawfully and unfairly.
The KMJA argued that the power to discipline judges and magistrates lay with the Judicial Service Commission (JSC). This meant that judicial officers appointed before this date were at the risk of a form of double jeopardy. First, they were subject to vetting for anything they had done before the effective date.
Secondly, they were also subject to the JSC discipline for anything they had done after the effective date. This was discriminatory because those appointed after the effective date would be subject only to the JSC disciplinary process.
Both the High Court and the Court of Appeal agreed that the board’s mandate was limited. It could only vet judicial officers appointed before the effective date and only in relation to their activities up to that date.
The Supreme Court accepted this reasoning and, gratuitously, went even further. The board had to confine its enquiries to the things done between the day a judicial officer was appointed till the effective date, August 27, 2010. Though plausible, this reading of the vetting law defeats the spirit of the Constitution and completely undermines the goals of vetting.
To begin with, the Supreme Court had no reason to narrow the time frame from the day a judge is appointed. One, up to the day of this judgment, the vetting board had assumed, correctly, that what a judge had done before he was appointed — say stealing a client’s money — was relevant to whether he was suitable to hold office.
Two, none of the parties in the Supreme Court had argued that the board should not consider a judge’s activities after he was appointed. So, just like in Mr Salat’s case, the Supreme Court had gone fishing outside the record before it.
At a more profound level, the Supreme Court — like the Court of Appeal and the High Court before it — fundamentally misconceived the purpose of judicial vetting.
Vetting was meant to be a bridge between the old order and the new one. It was an opportunity to begin afresh. The board was meant to vet all judges and magistrates in office on the effective date.
Until all such judges and magistrates were vetted, they could not properly be in office under the new Constitution. In short, the Constitution created two different but complementary processes: vetting for judges and magistrates in office before the effective date, and a disciplinary process under the JSC for judges and magistrates appointed under the new Constitution.
The proper interpretation is that judges and magistrates appointed after 2010 were not subject to vetting. And those appointed before were subject to vetting for all their activities up to the day of vetting. Once they were found suitable, any future complaints against them would be disciplinary issues for the JSC.
The upshot? Corruption in the Judiciary is back with a vengeance. But it has been helped along by a poorly designed vetting procedure and a plainly bad Supreme Court judgment. The CJ should not be heard to complain.
Mr Wachira Maina is a constitutional lawyer. [email protected]