A third purge? CJ Willy Mutunga and lawyers decry increase corruption in the judiciary

Chief Justice Dr Willy Mutunga deliver a speech during a past visit to Kakamega Law Courts. PHOTO: CHRISPEN SECHERE/FILE

MOMBASA: The judiciary is on the spot, yet again, over rising cases of judges and magistrates bribery claims despite two corruption-related purge in a span of 12 years.

On Monday, Chief Justice Dr Willy Mutunga torched the debate on corruption in the judiciary when he openly admitted during judges' colloquium in Mombasa that the vice had seeped back into the judiciary.
Senior Lawyers now concur with the CJ and say there was need for a more vicious vetting exercise to root out corrupt judges and magistrates in or what one of them describe as "potent prescription that can cure the scourge".

"The radical surgery and vetting exercises were traumatizing experiences for most of the judges. But if we do not take a personal and professional stand against this vice (bribe) then I can assure you the vetting exercise will be back - and this time, in a more vicious form than the previous one," said Dr Mutunga in his presentation he said.

Lawyer Ahmednasir Abdullahi and Law Society of Kenya Chairman Erick Mutua agrees with the CJ that the radical surgery on the Judiciary had not eradicated the vice.

They say the 2003 to 2004 radical surgery led by Justice Aaron Ringera and the Judges and Magistrate Vetting Board did not eradicated the vice and that the rate of complaints against judges and magistrate involved in corruption from members of public was all time high.

"Preliminary samples results show that the radical reform dosage administered to the Kenya Judiciary has neither cured the malignant cancer of corruption, inefficiency and impunity nor slowed down its spread," said Ahmednassir.

He adds; thus the distinct possibility exists that a much stronger, more potent prescription many be required and very soon with a view to settle the question of reforming the judiciary once and for all," said Ahmednassir.

In 2003 Justice Aaron Ringera led purge saw 23 out of 45 Court of Appeal and High Court Judges and 82 out of 254 Magistrates were implicated as corrupt. Many retired while others fought their way back to the bench.

In 2011, Justice Sharad Rao led Judges and magistrates independent commission found 13 judges unfit to continue to serve but others were later cleared by the same commission.

Court of Appeal President Justice Kihara Kariuki says the judiciary must fight to regain the public's confidence by emphasizing on integrity and judicial ethics.

"As Judges, we must walk a fine, narrow and straight ethical path in all our ways, not least in shaping legal principles which reflect the normative aspirations of our Constitution, most eloquently deposited in the national values, goals and principles under Chapter One and the principles of leadership and integrity under Chapter Six of our Constitution," said Justice Kariuki.

Lawyer Ahmednassir says a process to appraise the judiciary should be carried out to determine the reach or the limits of the reforms conducted on the judiciary to know whether the legislative or political intervention had solved the judicial malaise.

"It (appraisal) would give us a precious insight into the reach and limits of imposed or prescribed legislative and political interventions remedies to the judiciary as a case study. As a country we cannot lament and complain endlessly against corruption and judicial inefficiency and impunity," said Mr. Ahmednasir.

LSK Chairman, Erick Mutua admits that there was widespread fears among the public that corruption had crept back adding that the number of complaints against Judges and Magistrate started to increase in 2012.

"It is a fact that complaints against judicial officers has continued to rise starting 2012, 2013 and 2014. It is shocking that an institution which an emblem of high moral standards is now dogged with allegations of graft and other malpractice," said Mutua in Mombasa.

He commended the CJ for publicly admitting that the vice was affecting the country's justice system saying it had provoke a debate which he said should be extended to other government institutions like the police and parliament.

The CJ said JSC will also not flinch in acting tough on dishonest judicial officers adding that JSC was perturbed by the number of complaints against judges and magistrates.

"The bar of public accountability has risen and we must accept that this is the reality of the new Kenya. And when members of the public write to me to complain about delayed cases, and I make follow up inquiries, I expect the judges to respond," he said.

He added that such intervention should not be misconstrued as interference with decisional independence of the court but push for accountability on service delivery standards.

The CJ in his presentation, said he would however protect the judicial officers from political harassment and regretted the leakages of the proceedings of allegations facing some judges during JSC hearings.

"JSC understands that it has a duty to protect judges from petty harassment as an important part of fighting for the independence of the Judiciary as mandated by the Constitution. However, JSC must not and cannot be seen to protect judicial officers from complaints that have merit such as delayed rulings, absenteeism, and laziness," warned Dr Mutunga.

"I have never understood why a judge, who is very well paid, enjoys security of tenure, has highly concessionary mortgage and car loan facilities, has an excellent medical cover, has probably had a previously successful career as an advocate or scholar or over a decade, should indulge in a practice so demeaning at both professional and personal level," said the CJ.

Dr. Mutunga's admission of corruption at the Judiciary appears to validate a section of lawyers, political leaders and some civil societies sustained accusation against the judiciary and claims that vice was still rampant at the institution despite the recent purge.

Questions over the composition of the Supreme Court was also raised with Ahmednassir alleging that it faces crises of legitimacy.

"A member of the court has simply refused to retire at the mandatory age of 70 years, we to court and obtained a court order from the Court of Appeal and continues to sit in the highest court of the land. A second member is set to retire in December. What is the impact of the refusal to retire?" said Ahmednassir.

The Supreme Court was also castigated over its approach to constitutional interpretation.
"Within a short period of time the Supreme Court inherited many vices of the old Court of Appeal without acquiring any of its virtues. These vices include, but not limited to a chest-thumping, finger wagging interpretation of the law, a condescending aura of invincibility and infallibility as the apex court," Ahmednasir told the judges in Mombasa.