Why efforts to clean up the Judiciary are always going to fail

Last August, I was invited by Justice (Prof) Joel Ngugi of the Judicial Training institute to address Kenyan judges during their annual colloquium in Mombasa.

I presented a 21-page paper titled “The Limits of Prescriptive Reforms: The Struggle and Challenges of Judicial Reforms in Kenya, 2002 to 2010”.

On the eve of my presentation, a number of judges having heard rumours as to the tenor and purport of my paper, moved a motion that I should be disinvited and barred from presenting the scheduled paper.

The more sensible judges were dismayed by the attempt to disinvite me, and a quick straw ballot conducted saved the day.

But such is the deficit in the democratic credentials of our judges and their insular attitude to audit and interrogation!

The central thesis of the paper was simple. No country in the world has invested more time and resources and tried as hard as Kenya to reform its judiciary.

WE FAIL EVERY TIME

Few countries in the world have failed as spectacularly as Kenya in reforming their judiciary. We have tried everything. We have failed every time.

We tried the Radical surgery of 2003 when we summarily dismissed fifty percent of our judges.

We tried the vetting of judges and magistrates in which we forced all judicial officers to reapply for their jobs.

We adopted a progressive constitution that freed the judiciary from executive shackles.

We are the only country in the world where the president has little say in the appointment of the Chief Justice.

We established a powerful Judicial Service Commission that appoints all cadres of judicial officers.

Yet, the Kenyan people have not been rewarded with an efficient, competent and corruption free judiciary.

We have instead been saddled with a judiciary that is rotten to the core, stinking to the high heavens, byzantine and barbaric.

Every time we think we have discovered a cure for corruption, it mutates into a more virulent and malignant form that stakes a bigger claim in our courts.

CORRUPTION

So what is the problem? Simple. We are trying to cure a societal malaise with a heavy dose of constitutional and statutory prescription.

It is not working. It won’t work. A sick society seers a sick judiciary. You cannot cure the judiciary in isolation of the larger society.

Unless we provide a holistic cure for the many ailments that afflicts the Kenyan society, we will have a very sick judiciary.

Corruption in our judiciary is both stealth and grand. It is mostly an under the table affair.

Occasionally when someone fails to keep his bargain, the aggrieved party spills the beans.

JUSTICE TUNOI SAGA

The sordid details of the bribery scandal that has engulfed and consumed Justice Philip Tunoi of the Supreme Court ought to be seen in that light.

The Tunoi scandal however brings to the fore a number of fundamental issues that should be appreciated in the context of judicial reforms.

First, it is the most glaring evidence that the Supreme Court just like other court in the country is not immune from corrupt practices.

Whereas they are a number of judges in the Supreme Court who are beyond reproach, there could also be a number who sell justice both at wholesale and retail prices.

This is the second major test the Supreme Court faces since its inauguration.

It survived the presidential petition because the average Kenyan agreed or disagreed with the court’s judgment depending on one’s political affiliation.

The Tunoi bribery scandal is an entirely different ball game. The Tunoi bribe saga is rightly seen as a violent breach of the people’s trust by the court.

This scandal will greatly dent the image of the nascent court and leave a gushing and deep scare.

BETRAYAL OF IDEALS

Second, the ideals that informed the creation of the Supreme Court have been betrayed.

To be fair, even before the Tunoi saga the Supreme Court was limping under the heavy weight of failed expectation and a total lack of imagination and ambition.

Its reputation in terms of sound legal theory and enlightened jurisprudence is zilch.

Its work ethics is shameful, even in terms of simple timekeeping; the court assembles half an hour or more late!

Third, the inaugural Supreme Court was let down by at least three judges including Justices Tunoi and Deputy Chief Justice Kalpana Rawal who are unanimously seen in legal circles as lost, out of their depth, unable to get a legal rhythm and rhyme, whispering in a jurisprudential wilderness and unable to stand up to the intellectual rigors a Supreme Court demands.

The Supreme Court has in the process failed to acquire a “reputation for erudition, equity and elegance of expression”.

Fourth, the judiciary should not be viewed in isolation. It is a mere reflection, indeed a microcosm of the larger Kenyan society.

Kenya is one of the most corrupt countries in the world.

The executive steals from the people; the legislature steals from the people, the private sector bribes the public sector.

The police, army, prisons steal from the people. So why then do we expect the judiciary to be saintly in the land where the devil is the dominant force?

After all, don’t we appoint our judges from a pool of corrupt lawyers with itchy fingers and fathomless appetite for greed and money?

CONVEYOR BELTS OF CORRUPTION

Fifth, lawyers are both conduits and the conveyor belts of corruption in the judiciary.

Unless were address the threat posed by lawyers in corrupting the judiciary, we will never be able to win the war on graft in the judiciary.

Ninety percent of corruption in the judiciary is through lawyers.

This market is mostly dominated by dinosaurs from the Kanu-era, who have become wealthy through corruption.

But we also have a number of new kids on the block. Every time this axis of evil of judges and their lawyer partners is removed either through radical surgery, vetting or other curling attrition process, they replenish their stock.

Every major town in Kenya has a lawyer who is the revered sultan of corruption in the judiciary.

So what is the future for the Kenyan judiciary? Doom and dollars!!

Mr Abdullahi is a former member of the JSC