Arrest of ‘rogue’ judge the more reason Judiciary needs support

A Court of Appeal judge, or any other, being mired in nefarious activities is nothing new. But the Kenyan chapter of judge gone rogue reads better than a good John Grisham novel.

The Whisperer, one of the books by Grisham, talks about judges involved in grand corruption, where the bad guys win cases because they had millions of dollars to but justice. That is fiction but our rot is real. The latest Kenyan crime story, sadly, has a disturbing twist because it involves the murder of an innocent party with a judge allegedly a suspect.

JUDICIARY

With more and more disturbing cases coming out of the Judiciary, the last thing Kenyans want to see or hear is the fight between the Executive, Legislature and the Judiciary as has been the case these past few years.

Since the nullification of the 2017 presidential election, the Executive, led by President Kenyatta, has not relented on its attack on the Judiciary — going as far as allegedly attempting to interfere with the Judiciary’s budgetary allocation and dragging its feet on the appointment of judges.

The Director of Public Prosecutions has not been left behind in pointing a finger at it either.

The corrupt nature of the Judiciary is shared by the rest of the country. Cases grinding to a halt due to incessant unjustified adjournments and missing evidence has been the norm in the courts.

Former Chief Justice Willy Mutunga’s assertion that the cartels were embedded within the Judiciary (Remember “bandit economy”?) has come to pass with more and more murky allegations swirling around magistrates and judges.

DEMOCRATIC STATE
To say the system is broken is an understatement. It is rotten to the core. The sigh of ‘leaving it all to Jesus’ is, unsurprisingly, common among the ordinary folk who have been let down by the justice system. But then, do we deserve to feel helpless while pursuing justice in a democratic State?

Respect for the rule of law is the glue that binds a democracy. If, and when, one arm of government chooses to slacken and act with impunity, the result is a rise in graft and cries of injustice ringing across the country.

When the Executive, Judiciary and Legislators attack one another in public, they expose the lack of synergy needed to run a country effectively.

Like a dysfunctional family, it lets itself open to wanton abuse by unsavoury elements in the society. It was not surprising, therefore, to notice how the Akashas, a notorious drug-dealer family, could have the Judiciary turned around their little finger only for the country to be freed from their vise-like grip by an external justice system — America’s.

INEFFECTIVE
Using the analogy of the African stool with three legs, it takes one of them to break for it to be rendered ineffective. The three arms of government need to find a way of working together.

Digitising the courts will amount to nothing if better and incorruptible human resource is not built and supported.
The Executive and Legislature must put their money where their mouth is. Pledging to fight corruption is one thing and being seen to support the process is another. It involves proper funding and capacity building to tackle the vice.

The Judiciary has enough skeletons in its cabinet to deal with alright, but constant attacks on it exacerbates the rot and bolsters the cartels that have been instrumental in destroying it.

The Judicial Service Commission and the Law Society of Kenya are not absolved of blame either. The number of rogue magistrates and judges will continue to increase if JSC does not work harder to weed them out.

CRIMINAL MATTER

One legal rule that JSC needs to consider is whether a sitting judge or magistrate can continue serving when they have an active case in court that touches on their integrity.

Yes, judges need to be above reproach, but not necessarily above the law to be judged differently. The JSC disciplinary process should be reviewed to speed up the expulsion of rogue judicial officers.

It is wrong legally and ethically for a judge or magistrate to continue hearing cases while they are implicated in a criminal matter.
Some lawyers have been known to deliberately slow the due process on flimsy excuses with a view to ‘killing’ cases.

To avoid such scenarios, it’s incumbent on the courts to set a strict time limit to hear and determine a case. Poor record management is also another issue that has led to crucial evidence disappearing or deliberately interfered with to frustrate a court case.

Digital record-keeping might be worth considering for the items to be scanned and stored securely.

The best legacy President Kenyatta can leave is a corruption-free country. He has made enough talk on corruption, but needs to walk the talk by supporting the Judiciary in order to instil confidence in the courts again.

The Constitution has given Kenyans a spring in their step. Their faith in the Judiciary must be complemented by full support for it by the other arms of government.

Ms Guyo is a legal researcher. [email protected] @kdiguyo