Board must get tougher to root out rogue officials in Judiciary

There was a glimmer of hope with the advent of the new Constitution in 2010. It brought about the Judges and Magistrates Vetting Board, which was meant to clean the Judiciary by weeding out corrupt and incompetent judicial officers who were giving the courts a bad name.

There was also a revamped Judicial Service Commission (JSC), which was, for the first time, exercising its mandate independent of the Executive.

However, it has become impossible to be given a fair hearing on any complaint lodged with the JSC as it takes years to receive a single response — if my personal experience is anything to go by.

COMPLAINTS

I lodged a complaint on October 25, 2013, appeared before the JSC on May 14, 2016, almost three years later. But the matter has never been determined, inasmuch as I never asked for the removal of the judge I complained against from the Judiciary.

A client of mine who lodged a complaint on May 8, 2014 against a JSC member, a judicial officer, has never received a single communication.

It is high time the recommendations by the Judges and Magistrates Vetting Board are implemented so that an independent body, a replica of the Law Society of Kenya’s disciplinary tribunal, can be set up to deal with complaints against judicial officers.

It is impracticable to have complaints against approximately 700 judicial officers spread all over the country handled by 11 part-time JSC members, mainly comprised of judicial officers, advocates and the Attorney-General, all very busy persons with their legal practice and core judicial engagements.

MISCONDUCT

The AG should initiate the requisite legislative legal framework in Parliament for enactment.

It is quite upsetting and annoying for the few rogue magistrates and judges to continue their misconduct without any recourse. Most often, one comes across court decisions which, when you read through, you automatically conclude that either the judge or magistrate has been compromised or is grossly incompetent.

The permanent remedy for such misconduct not only lies in appeal, as we have been told on several occasions, but on the removal of such judicial officers as they taint the Judiciary’s otherwise good image, having failed the core test of integrity and competence.

Two extreme personal experiences in the recent past come to mind.

First, a magistrate, having granted an illegal injunction order on a money decree claim, aided the party he was assisting to sneak into the court and file material documents that had not initially been filed in the matter. He proceeded to capture the same in his ruling as though it had been filed.

OVERWHELMED

On appeal, a High Court judge set aside the orders and directed that investigations be conducted as all that transpired in the file impacted negatively on the integrity of the court, for which action would need to be taken against those found culpable. The investigation report delivered an adverse verdict, confirming that no such document was filed in court as there was no receipt for filing fees issued, even though it bore a court stamp, perhaps manufactured and/or falsified, a criminal offence in itself.

Secondly, in a very surprising recent ruling, a judge of the High Court, in a bid to ‘assist’ an applicant, who is an advocate, did the unthinkable. He wrote what came out as a very well-reasoned five-page ruling, and after making findings that the applicant had not met the well-known requirements set out in law for the grant of a stay of execution order pending the filing of a reference in a contested bill of costs, a money decree claim.

But the judge, in the very last paragraph of his ruling, made a very drastic about-turn with new inventions and reasoning not known in law to allow the stay of execution application.

These two cases speak volumes about the impunity with which some judicial officers undertake their work. This is compounded with the fact that the JSC is more or less overwhelmed and cannot cope with daily complaints arising against judicial officers from all over the country.

Mr Sumba is an advocate of the High Court of Kenya. [email protected]