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Judges’ arrests only attempt to even moral score with criminal arms

OPINION
By Kwamchetsi Makokha | July 25th 2021

Justices Aggrey Muchelule and Said Chitembwe. [File, Standard]

Besides the heady drama of seizing a judge, the irony of the lawgiver in the hands of the law, the paradox of a high priest of the law becoming its victim, there are disturbing undercurrents in the arrest of two judges this week.

Detectives seized Justice Aggrey Muchelule while he was on his way to deliver a judgment in a High Court matter. His chambers, as those of High Court judge, Said Juma Chitembwe, were also searched.

On average, every High Court judge hears some 1,600 cases in a year. A judge’s chambers, carrier case, car and home will likely have some parts of a dispute or litigation she or he is trying to resolve. The public only believes that the judge’s decisions are hers alone, influenced by nothing but the facts, the evidence and the law – because of the security around all the case materials.

When the blanket of confidentiality is stripped away, even if momentarily - such as by a search and seizure warrant - the integrity of the outcomes of cases before them cannot be guaranteed. And that is without the imagination wandering into which other ears will be listening as the judges instruct their researchers, registrars and clerks who assist in the running of the courts.

The arrest of judges in Kenya has become normalized over a long stretch. Justice Chitembwe was not only arrested, but also charged and tried in 2009 before being acquitted. Court of Appeal judge Sankale ole Kantai was in February last year arrested for allegedly interfering in an investigation.

Earlier, in 2008, Justice GBM Kariuki was not only arrested but also charged and tried for attempted murder. He was acquitted for lack of evidence and would be awarded Sh5 million in 2016 for malicious prosecution. And Deputy Chief Justice Philomena Mwilu was dramatically arrested at the Supreme Court in 2018 and charged with tax offences.

Deputy Chief Justice Philomena Mwilu. [Jonah Onyango, Standard]

The salutary lesson for detectives from these experiences is in the August 2019 High Court decision in the Mwilu case, when the judges observed: “While the DCI is not precluded from investigating the criminal conduct of judges, there is a specific constitutional and legal framework for dealing with misconduct or removal of judges. Consequently, cases of misconduct with a criminal element committed in the course of judicial functions, or which are so inextricably connected with the office or status of a judicial officer, shall be referred to the Judicial Service Commission in the first instance.”

The Director of Public Prosecutions denial of any knowledge of the reasons for the judges’ arrest suggests that the search of judges’ chambers, and their questioning in connection with an incredulous Sh5 million bribery investigation appears to be a naked ploy to besmirch judicial officers.

Although allegations of corruption against judges have been leveled in the past, they only produced resignations during the purge following the report by the task force on integrity chaired by Justice Aaron Ringera. One judge would reportedly come to work with a normal-looking umbrella and leave with it filled with dollar notes in the evening. Another judge was caught on camera receiving a cheque in the parking lot of a major city hotel.

Bribery allegations

In recent times, however, bribery allegations against judges have not been pursued to their logical conclusion. Claims of bribery against some Supreme Court judges in 2018 were abandoned after the petitioner withdrew their complaint.

Back in 2015, the Judicial Service Commission recommended the formation of a tribunal to investigate him. Although the President appointed a tribunal to investigate $2 million bribery allegations against Supreme Court’s Justice Philip Tunoi, he was deemed to have retired and the matter was never concluded.

Justice Philip Tunoi. [Beverlyne Musili, Standard]

Whatever the merits of the attempt to link Judges Muchelule and Chitembwe to bribery allegations, the symbolism of the assault will not be lost on observers. Justice Chitembwe enjoys global name recognition for writing the worst judgment in the world after freeing a man convicted of defiling a minor, but Justice Muchelule is the real big fish.

Not only is Justice Muchelule a former member of the Judicial Service Commission, but he is also a seasoned judicial officer who has risen through the ranks and seen almost all the political leaders take plea in Court No. 1 when he was Chief Magistrate.

He was appointed judge but was not sworn into office for over a year. His easy election to the JSC as the male representative of the Kenya Judges and Magistrates Association was the final recognition of the informal power and influence he already wields in the institution’s judicial ranks. The failure by the president to appoint Justice Muchelule to the Court of Appeal after successful competitive interviews is a source of great concern in the courts.

Justice Muchelule is one of six judges and judicial officers the president has held back from appointing despite nomination by the Judicial Service Commission. Judges Joel Ngugi, George Odunga and Weldon Korir were nominated to the Court of Appeal but their appointment has not been effected. Similarly, High Court registrar Judy Omange Cheruiyot and magistrate Evans Makori who were nominated as judges have also not been appointed.

In recent weeks, pressure has been mounting on the president to appoint the nominated judges even though bureaucrats in his office continue to raise objections on integrity grounds. Since they were nominated in July 2019, no evidence has been provided to impeach the candidates’ integrity.

With the Executive considered a veritable scene-of-crime, and Parliament waging legal wars of survival, the charging of judges appears to be an evening of the moral score more than anything else.

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