JUSTICE ON SALE
The litany of bribes, lapse in integrity, and alcoholism that nearly drove Judiciary to the hole
By NATE INGABO
Upon arriving at his new workstation in central Kenya, a Magistrate saw the prospect of owning land in the area. But he was penniless – or didn’t have enough cash. A broker offered to pay on condition the judicial officer would refund soon. It didn’t happen. An opportunity offered itself that made it possible for the magistrate not to honour the debt.
The broker got himself in trouble. He was hauled to court.
As it would happen, the case was to be determined by the magistrate “friend”. He slapped his “creditor” with five years’ incarceration instead of the one-year term stipulated in law. By the time his cries became loud enough to reach Chief Justice Willy Mutunga’s office, he had spent three years at King’ong’o Jail in Nyeri.
Later, after questioning by a statutory board that assesses the suitability of senior judicial officers, the said magistrate agreed about the business transaction but denied owing any money to the complainant. However, the board “established two serious failures on (the magistrate’s) part”.
One; the sentencing error was “unacceptable”. Two; he shouldn’t have presided over the case. “The maximum sentence permitted by law on this court was one year,” the independent body, Judges and Magistrates Vetting Board stated.
It declared him “not suitable” to hold office.
He isn’t alone. Three years since the Vetting of Judges and Magistrates Board started its work, 25 judicial officers (magistrates and/or judges) have been found unsuitable to serve in their positions – either incompetent or lack decorum, cannot explain the large deposits in banks, and/or are deficient in the requisite writing skills. Implicitly, courts turned some judicial officers into instant millionaires.
The Judges and Magistrates Vetting Board has so far vetted 198 judicial officers (including eight appellate judges, 44 judges of the High Court and 101 magistrates) and handled at least 14 review applications.
The vetting seeks to correct the deficiencies of the past and hopefully nurture a Judiciary that enjoys the confidence of the public and is central in democratic dispensation.
Sharad Rao chairs the Board. Other members include Justice (retired) Fred Chomba, Prof Ngotho Kariuki, Roseline Odede (Vice chair), Abdirashid Abdullahi, Justus Munyithiya, and Meuledi Iseme. Reuben Chirchir is the Board Secretary and Chief Executive Officer.
The Board carries out the vetting in panels of three. Each must by law have one foreign judge, one lawyer and one non-lawyer. The non-Kenyans are Justice Alice Mpagi-bahigeine (retired deputy Chief Justice, Uganda), Justice Barnabas Samatta (retired Chief Justice, Tanzania, and Justice Joseph De-Silva (retired Chife Justice, Sri Lanka.
“The vetting of judges and magistrates … (has) delivered some admirable results out of what is otherwise a tough job. (Its outcome has) largely drawn sharp attention to the oft neglected matter of wealth declarations and lifestyle audits. Not less than ten of the magistrates … had unexplained wealth, either cash transfers “into and out of their bank accounts or properties not declared for purposes of vetting”, says Transparency International Kenya, a not-for-profit organization that works for a transparent and corruption free society.
Thanks to the vetting board, Kenyans now have insight in the operation of the pre-2010 Judiciary.
Judges and magistrates were “untouchable”. They were a law unto themselves. They lived by extortion. The only difference between them and the crooks hey were meant to jail is that the judicial officials didn’t have to use guns for a living; the courts were deadlier.
Their operations were akin to the fabled “wild-west” in gangster movies. It was a case of “justice on sale” – the highest bidder could buy freedom. All one needed to remain and operate freely as a criminal was to be rich. Sons and daughters of the powers-that-be were untouchable.
“Board noted several large cash and cheque deposits in the magistrate’s bank accounts”. The magistrate in question couldn’t offer a convincing explanation. “The Board finds that the magistrate lacks financial probity.”
Another magistrate deposited “inordinately large amounts” in cash and could not give convincing explanations.
If that’s hardly incriminating enough, in another case, a judicial officer “accompanied one of the parties to the bank in suspicious and questionable circumstances immediately after the delivery of the ruling”.
“If the courts themselves behave in an unjust way, the public lose confidence both in the Judiciary as an institution, and in the Constitution as the basic law of society,” the vetting board said on December 21, 2012.
“(Courts) should be places of welcome, not of terror.”
Why a judicial officer would convict without the testimony of arresting officer is mindboggling. In a telling move, a magistrate made a ruling in the absence of counsel on a date that was not supposed to be the date for delivery of the ruling. When asked by the vetting board, “he just states that it was not intentional, and apologises for the oversight”.
And another magistrate received “regular large cash deposits” made into his bank account, after he was posted to Mariakani which is considered a “hub of corruption” – owing to the Mariakani Weighbridge .
In Makindu, a magistrate handled a case in which a fellow magistrate at the same station had been sued. A complainant stated that at one time he saw the two (magistrate and defendant) walking together outside the court premises, and they were chatting and laughing.
“There’s a tendency for magistrates to hear cases involving (their colleagues) serving at the same station. This practice must be discouraged as it affects the perception of justice, indeed it enhances perceptions of bias. Justice must not only be done, but must be seen to be done,” board said in its report of January 31, 2014.
The magistrate in question, the Board said “did not appreciate the impropriety of his conduct and stated that he tried the matter with a very open and principled mind”.
A magistrate made “one page documents that did not capture the requisite of a judgment … shallow, poorly written and show a lack of diligence and competence”. This magistrate had been on the Bench for nine years yet couldn’t write proper judgments indicting “serious shortcomings on her abilities and skills as a magistrate”.
The Board went on, thus “her analysis of issues is very poor. Her judgments show that she lacks a good grasp of the law; and reveal a failure to research legal issues and principles. Her writing did not reflect (that one) of a person who has been in the Judiciary for almost a decade”.
One of the magistrate’s judgments made “no reference to authorities or evidence furnished by the parties”.
Some accident insurance awards were pre-determined. One magistrate awarded damages for dislocation yet there wasn’t such a thing.
In some cases, magistrates conspired with prosecutor to fix an accused. “There have been several instances when complainants or potential witnesses have been coerced to drop the complaints, or not to appear and testify. Such conduct is unbecoming. The integrity of the involved judicial officer is worrying”
A certain judge was found “exceedingly, incomparably discourteous, vindictive and temperamental”. The Law Society of Kenya (LSK) Rift Valley Chapter found the same judge “moody, virulently hostile, abrasive, rude and insulting”.
Conniving judicial officers relied on ultra-technicality to impede the work of agencies set up to investigate malfeasance by those in positions of authority. “Far from furthering the rule of law, these narrow, technical rulings, issued in the name of legality, contributed massively to the prevalence of impunity.”
“Indeed, they undermined the rule of law, promoting a spirit of lawlessness that proceeded from the highest in the land all the way down. The unhappy lesson for the country was thatbthe emancipatory vision of the rule of law should not be confused with the tyranny of heartless legalism,” the Board notes.