The Judiciary has been in the forefront in applying and interpreting the laws of Kenya and the Constitution.
The institution has also attracted a lot of interest both from the State, the public, and other actors, who make good use of its corridors in pursuit of justice.
Progressive and disruptive interest has at times either added value or worked towards eroding public confidence in an institution the country cannot do without.
In order to enhance capacity and bring justice closer to the people, the Judiciary has been building a total of 100 courts across the country. This is with support from the national government annual budget allocations and the World Bank, with the later contributing Sh12 billion.
Last year, the European Union (EU) also offered 34 million Euros (Sh4.2 billion) to support Kenya’s justice system over a five-year period (2017-2021) under the Programme For Legal Empowerment and Aid Delivery, to ensure equal justice for all Kenyans.
Without a doubt, the justice system in Kenya has undergone tremendous transformation since independence, but a lot still needs to be done, as testified by some of the longest-serving judicial officers.
Most of them, and who have since retired, shared their experiences with the Nation on what they feel could have, in one way or another, amounted to interference with judicial independence and what should be done to ensure the Judiciary maintains public confidence.
On April 12, 1987, the story of a Kiambu businessman Stephen Mbaraka Karanja went viral with his arrest by police and subsequent disappearance. It remains unclear whether he was a political dissident or a criminal, although the police went with the latter.
After his disappearance, his wife, Naomi, moved to court and High Court judge Derek Schofield directed the police to produce the subject in court.
The police, through the Attorney-General’s office then headed by Mathew Guy Muli failed to comply with the court orders and reported to the judge that Mr Karanja was shot dead as he allegedly attempted to escape from lawful custody.
When the police failed, the no-nonsense judge ordered police to produce his body. What followed was a fruitless exercise where police exhumed 19 bodies at the Eldoret Municipal Council cemetery in search of Mr Karanja’s remains.
In a dramatic twist of events, Chief Justice Cecil Miller intervened and transferred the judge to an upcountry station.
Justice Schofield felt it was a punishment for his position in the matter, turned down the transfer, and quit the Judiciary. He later left the country to become the Chief Justice of Gibraltar in the Cayman Islands.
In an earlier interview with the Nation, Justice Schofield said there were a series of interventions from the Chief Justice, who advised him that his contract was in jeopardy.
“I told him that I was willing to pay the price for my principles and independence. When the file was taken away, I had no alternative but to leave,” said Justice Schofield, who added that, at the time, there were very few cases on human rights as we see today.
“In fact, the enforcement of human rights is a developing area of law that has come to the forefront in the last 20 years, not just in Kenya, but internationally,” Justice Schofield said in the October, 2008 interview with the Nation.
The Kanu regime took note of the incident and it is believed that it formed a major part of the reason why later, in 1988, Parliament amended the Constitution to temporarily remove the security of tenure, ‘to tame the big-headed judges.’
It later emerged that Mr Karanja was fatally shot and his body burnt to ashes in a thicket in Eldoret.
On January 18, 2013, Justice Schofield presented a paper on ethics and principles in the legal profession at the Strathmore Law School and, reflecting on Mr Karanja’s case, he explained that he was ready to lose his job and life, but not his dignity.
“I was there when the security of tenure was removed. That formed part of the erosion of the Judiciary, probably the beginning,” narrates Retired Court of Appeal Judge Riaga Omollo.
The changes made judges become like any other civil servant and could be dismissed at the pleasure of the President.
“Despite that, judges still said ‘no’ where it was fit to do so, but knew they could be dismissed if the government was not happy,” says Justice Omollo. He is quick to add that no judge was sacked during the period their tenure was removed.
Retired Court of Appeal judge Walter Onyango Otieno also feels that erosion of the Judiciary and interference with its independence started with the attitude of the Office of the President towards the judiciary. “In my humble opinion,” he adds, “the three arms of government — Executive, Legislative and Judiciary — need to respect each other.”
“Insults by politicians directed at the judges are some of the things, which have made the court not to appear to be very strong,” Justice Otieno says.
CREAM OF JUDGES
The on-and-off purge by different administrations — Justice Aaron Ringera led ‘radical surgery’ of the Judiciary in 2003 and Justice Sharad Rao vetting of judges and magistrates in 2012 — and the manner in which they were conducted, is also claimed to have removed the cream of judges on grounds many felt were not satisfactory.
The committee chaired by Justice Ringera that implemented the 2003 Judiciary purge forwarded a report containing judges and magistrates to then Chief Justice Evans Gicheru without giving them a right of reply.
It saw 5 of 9 Court of Appeal Justices, 18 of 36 High Court Judges, as well as 82 of the 254 magistrates implicated in corruption.
They were given a two-week ultimatum to either resign or be dismissed. Several resigned or “retired”, while some vehemently defended themselves against their dismissals and were able to get back to the Judiciary.
Justice Omollo says that even the judges and magistrates who were not affected by the purge became wary of their future in the judiciary.
“These obviously have affected the institution and, as usual, when you open up things to politicians, and others, you weaken the Judiciary,” he says.
It is felt that senior advocates don’t want to join the bench because of the frequent purges, fearing they will leave their high-flying careers to become judges, only to be thrown in the cold after a few years. Many who have been showing interest in becoming judges are young lawyers with just the minimum number of years required to be appointed judge.
“How do you leave your chamber of many years with good practice, to become a judge and hardly five years down the line you are removed because you have made a judgment which irks the Executive? It destroys your life, and reputation,” retired judge Nicholas Ombija says.
Several judges and magistrates were sent home by the Judges and Magistrates Vetting Board (JMVB), a body created by the 2010 Constitution. A number of factors were considered to remove unfit judicial officers.
Retired Justice Sharad Rao, who chaired the JMVB, says he considers the exercise was a success, and that it put judges and magistrates on guard “that they are not immune to any kind of wrongdoing be it corruption, delay in delivery of judgments and temperament.”
According to him, there were instances where litigants and lawyers feared appearing before certain judges and magistrates considered to be high tempered.
“Today when they go to court, they find the atmosphere much [more] conducive and they can argue their cases with ease. They are now happy with the transformation that has taken place since vetting,” retired judge Rao says.
He points out that the only weakness with the vetting was that the mandate of the board was limited to judges and magistrates who were in office on the date the new Constitution came into effect. The suitability of those appointed after the new Constitution was vested on the JSC.
Many judges and magistrates were appointed after the 2010 Constitution, in greater numbers than those who were serving before the new Constitution. The new judicial officers were not subjected to vetting.
UNFIT TO HOLD OFFICE
“There was no mechanism to vet those who came to office after the new Constitution, even if they were unfit to hold office,” Mr Rao says.
Justice Rao adds, however, that looking at the judgments and rulings from today’s courts, he is convinced that “by and large, a majority of the judges and magistrates are very competent and independent” unlike the immediate post-independence ones he says were “susceptible to the executive.”
Justice Otieno also feels that if a complaint is raised against a judge or a magistrate, it should be thoroughly investigated bearing in mind that they are making decisions that will go against somebody or an institution.
“You can’t take every complaint against a judge or magistrate as proof of guilt. A lot of awkward complaints are being raised against them. Somebody may have an idea of giving a bribe and when he loses the cases, thinks the other gave more,” justice Otieno.
Retired Judge Richard Kwach says that although the Judiciary is independent, there are many instances where people who are not in the Judiciary have voluntarily sought to offer unsolicited advice on what needs to be done.