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Kenyan judges have the right to annoy while staying accountable

By Kwamchetsi Makhoha | May 16th 2021
From Left, Lady Justice Teresia Matheka, Justices George Odunga, Joel Ngugi Jairus Ngaah and Chacha Mwita at Milimani Courts on Thursday, May 13, 2021, delivering the judgement on eight consolidated petitions challenging the BBI referendum. [Collins Kweyu, Standard]

Until the High Court last week deflated the wheels of the Building Bridges Initiative (BBI) juggernaut to change the Constitution, establishing the office of Judiciary Ombudsman seemed like a foregone conclusion.

The omnibus Constitution of Kenya Amendment Bill, 2020, had lumped the question of judicial independence with political sweeteners such as the enhancement of monetary allocations to the counties, extra seats in parliament for women and politically populous regions.

Despite protestations from the Judiciary and civil society groups such as the Kenyan Section of the International Commission of Jurists (ICJ Kenya), the country’s political leaders had all but agreed to provide money for a prefect for judges and judicial officers. The office would receive and investigate complaints against judges and judicial officers, reporting annually to the Judicial Service Commission and the Senate.

Opposition to the proposals stemmed from fears that far from enhancing the administration of justice, the office was a deviation from the principles of separation of power and would undermine the independence of the judiciary.

“We acknowledge that the Judiciary should be accountable in a transparent manner to the sovereign will of the people of Kenya, [but] emphasise the need to ensure separation of powers,” ICJ Kenya said.

Annoying powerful people is one of the occupational hazards of being a judge. It is precisely because of the expectation that impartial judicial decisions will sometimes rankle the powerful that democracies grant judges independence, which includes security of tenure.

In Kenya, judges cannot be removed from office on a whim. There are two valves for releasing anger against a judge – the first is to appeal their decision, and the second is to seek removal on any of five grounds: inability to perform the functions of office arising from mental or physical incapacity; breach of the code of conduct for judges; bankruptcy, incompetence or gross misconduct and misbehaviour.

Frustration with an inability to punish judges who hand down annoying decisions was evident in attempts to remove some judges of the Supreme Court from office after their September 1, 2017 decision on the presidential election. The petitions were admitted and dismissed in short order.

Although politicians obsess about removing from office those judges who rule against them, the process is messy and far from easy -- it so elaborate as to constitute a trial and an opportunity for appeal.

A major recommendation of the constitutional review process, led by Prof Yash Pal Ghai, was that all judges in Kenya needed to resign and reapply for their positions. The radical proposal was negotiated down to the establishment of the Judges and Magistrates Vetting Board after the promulgation of the 2010 Constitution.

JMVB was expected to conclude its work within a year of establishment in 2012 but lived on for another four years. By the time it wound up, it had removed four Court of Appeal judges and eight from the High Court.

When it handed in its report, President Kenyatta observed that there was a need to set up an independent tribunal to continue the work that the vetting board had been doing. “The Judiciary must always understand that they are being watched, everybody must be accountable and judiciary is no exception,” he added.

The JSC is constitutionally mandated to receive petitions for the removal of judges. Between 2013 and last year, a period of eight years, the Judicial Service Commission received 499 petitions and complaints against judges. An overwhelming number of the petitions were dismissed at the preliminary stage because they were either frivolous or complained of decisions that could be appealed for review.

After the promulgation of the 2010 Constitution, the JSC has recommended the establishment of tribunals to investigate allegations against Deputy Chief Justice Nancy Baraza, Supreme Court Judges Philip Tunoi and Jackton Ojwang, and High Court judges Joseph Mutava and Martin Muya as well as Employment and Labour Relations judge Marete Njagi and Justice Lucy Waithaka of the Environment and Land Court.

Justices Baraza, Mutava and Muya were removed from office while the Court of Appeal stopped proceedings in Justice Waithaka’s case in June 2020.

The tribunal investigating Justices Ojwang and Njagi cleared them of any wrongdoing, but Justice Tunoi’s matter was never concluded. Its evolution provides salutary lessons on the struggle to control the judiciary and the forces in play.

Interesting allegations were made in the Justice Tunoi case some depicting plots that modern-day movies are made of.

As darkness spread over Nairobi and traffic snaked its way out of Kenya’s capital along Waiyaki Way into the suburbs and onwards to rural destinations west of the country, a white Mercedes Benz pulled into the Petro fuel station after the ABC Place -- the yellow, red and black colours are luminous beacons in the darkening night.

Minutes later, a sports utility vehicle would park next to the Benz. A briefcase moved from the SUV and was handed through the window to a passenger on the back seat of the Benz. The governor of the city’s county had allegedly just delivered a $2 million bribe to one of the country’s seven Supreme Court judges to secure a judgment that would save him from a by-election.

These allegations first surfaced in an affidavit sworn by journalist Geoffrey Kiplagat in December 2014. Then Chief Justice Willy Mutunga thought them to be so serious enough that he asked the National Intelligence Service to investigate them. Although the intelligence service confirmed that indeed the cell tower logs placed the journalist and the judge at the location on the said date -- and that vehicles belonging to the governor and the judge were in the same area, it would not file a formal report. The JSC nevertheless recommended that the president appoint a tribunal to inquire into the judge’s alleged misconduct.

It seems straightforward: but the NIS declined to sign the report it had provided to the JSC. It would emerge that it was neither typed nor even presented on a formal letterhead. President Kenyatta suspended the judge but did not appoint a tribunal immediately.

In fact, a statement went out from State House that the President would not appoint the tribunal, only to change his mind 24 hours before the deadline for doing so lapsed.

From the outset, the effort was only half-hearted, and Edwin Sifuna, the secretary-general of the Orange Democratic Movement, said at the time: “This tribunal was set up to fail ...”

The tribunal began its work at a time when Justice Tunoi was in court to challenge his retirement after attaining the age of 70 years. A series of adjournments to accommodate the hearing of the case in the High Court, Court of Appeal and Supreme Court finally ended in the investigation not being completed by the time the judge retired in 2016.

Removing judges from office has been an obsession of the political leadership for a while. When Mwai Kibaki became President, political pressure mounted on Chief Justice Bernard Chunga and High Court Judge Samuel Oguk to resign in 2003, followed by the ‘radical surgery’. Hurried attempts to cull the judiciary on charges of corruption have come a cropper.

The so-called radical surgery, following the report of the integrity and anti-corruption committee on the judiciary led by Judge Aaron Ringera, which implicated 23 judges of the Court of Appeal and the High Court as well as 282 magistrates, saw 15 judges resign while the others mounted successful legal challenges to their removal.

Previously, on August 5, 1988, Kenya’s Parliament amended the Constitution to remove security of tenure for judges, but for the two years the legal regime was in force before pressure forced a rollback, no judge was fired. Scholars like Makau Mutua have observed that there was instead a trend of appointing more pliant judges.

The JSC regularly sacks judicial officers – magistrates, registrars and kadhis – who do not enjoy security of tenure for incompetence, committing illegalities, gross misconduct, gross misbehaviour, corruption, fraud and violation of the Constitution.

As it becomes clearer to the political leadership that removing judges from office is no walk in the park, their appetite to control the recruitment process will be whetted as the only way to control judicial outcomes.

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