Judicial Service Commission and Chief Justice must independently purge graft in Courts
Lately, the Judiciary has been under intense pressure and criticism from the Executive, the DPP, the DCI and some sections of the political class. They insist that courts have become complicit in defeating the fight against corruption in Kenya.
This was laid bare recently during a multi-sectoral anti-corruption conference when the DPP, Noordin Haji, wondered how a governor who has been charged with murder — in a case which, according to him, has compelling evidence — can be given bail and allowed to go back to his office to frustrate and fire members of staff not willing to ‘tow the line’, and also interfere with witnesses.
Coincidentally, sophisticated video clips being shared on social media have painted the picture of a Judiciary run by criminals and cartels.
One such clip sensationally claimed that a judge in Mombasa expressly ordered contaminated sugar be released to the market. This story was later found to be grossly misleading and inaccurate. The Judiciary’s response, however, came in belatedly.
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To critics, judges and magistrates have, by design, failed to strike a balance between justice in terms of fighting crimes such as corruption on the one hand - and the presumption of innocence for suspects on the other hand. Often, justice is tilted towards the accused, they complain.
Securing prosecutions is an uphill task. Even under the previous Constitution, criminal processes as a matter of law, have a very high threshold and quite often, the system is more concerned with the protection of the rights of the accused.
This is in line with William Blackstone’ assertion that “it is better that 10 guilty persons escape than that one innocent suffer”.
The 2010 Constitution further expanded the right to bail; limited the time a suspect can be detained before being charged; and provided that the right to fair trial cannot be limited under any circumstance.
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Critics of the Judiciary sometimes fail to appreciate that courts are first and foremost bound by the Constitution, laws passed by Parliament, their own rules and regulations, international law and customs and judicial precedence.
What is not being discussed is the role the Executive and the Legislature have played in ensuring that constitutional and statutory provisions on leadership and integrity were watered down. It is perfectly within the powers of the Executive and the Legislature to introduce and pass legislation that will compel suspects to step aside while under investigation or when charged with a crime.
Despite the onslaught on the Judiciary, it is one of the most improved and trusted public institutions in Kenya since 2010. It has been consistent in terms of protecting citizens and institutions from Executive and Legislative excesses, and has tried to keep alive the democratic and human rights aspirations of the people of Kenya. It has churned out jurisprudence that is being cited by jurists globally, including in regional and international courts.
The current constitutional order is a direct reaction from dark days when the judges and magistrates, led by the chief justice were at the beck and call of the executive, mainly because the presidency was the appointing authority. They had to please their master or face the axe.
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As a solution, the Judicial Service Commission was created to take up appointing and disciplinary matters. It comprises representatives from all the four levels of court; advocates, the public, PSC and AG. Be that as it may, the JSC cannot be law unto itself.
It must appreciate the unique role it plays in ensuring that the third co-equal arm of government is up to par. This includes initiating meaningful investigations to allegations of judicial misconduct such as corruption and undue influence. It requires members of the JSC to be beyond reproach in terms of integrity, impartiality and independence.
Corruption in Kenya is endemic. It has infiltrated every facet of private and public life such as planning, tender processes, policing, service delivery, elections, appointments, criminal justice etc. However, if we are honest with ourselves, the Judiciary, with its challenges such as case load and backlog, is not overrun by corruption.
I have filed and litigated several cases without ever having to bribe anyone. In fact, most processes within it, such as filing fees and court fines have been made cashless.
Nevertheless, I have no doubt that there are corrupt elements within it that must be purged within the law. The JSC must thus pull up its socks to instill confidence in the Judiciary. The Chief Justice on his part should form competent communications team to seek out and debunk smear campaigns directed towards the Judiciary. They seem more interested in destroying the institution than pointing out shortfalls.
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Mr Kiprono is a Human Rights Lawyer. [email protected]