“Judges have to have the humility to recognise that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath” – John Roberts
Kenya’s Judiciary, from both public perception and surveys conducted in the recent months, emerges as the most reformed governance institution and arm of government since the promulgation of the 2010 Constitution, a fact largely attributed to reforms instituted under Chief Justice The Honourable Willy Mutunga.
Indicators of this transformation abound: a significant reduction of the backlog of cases that has plagued the dissemination of justice for decades, the creation of the Judiciary Ombudsman, through whose office many can now seek recourse for judicial maladministration, a sustained assertion of independence and resistance to bullying by the Legislature and manipulation by the State easily come to mind.
But the Judiciary has also come under fire for the conduct of its officers, who have gone back to soliciting bribes and making a mockery of their offices. Corruption is thriving. These judges and magistrates are notorious for skipping court sessions, leaving lawyers to author rulings – at a price, of course – and selling favourable rulings to those who are willing to pay, effectively denying justice to those who cannot afford it.
Dr Mutunga – who is on record as saying that he will not hesitate to institute another purge to punish these errant judicial officers – came under fire during a judges’ colloquium held in Mombasa last month, for failing to take action to redeem the image of the Judiciary.
If the CJ does not make a hard decision soon, the integrity of this key institution, as well as the legacy he has worked so hard to build could all be disappear down the drain. At a time when Kenyans are talking stock of the gains made after promulgation of the Constitution, it is imperative that the credibility of the Judiciary as the custodians of the law that Kenyans so desperately want it to be is maintained.
The Constitution distinguishes the Judiciary as the ultimate authority in its interpretation, effectively setting it apart as its custodian. It is also the Judiciary that the other arms of government depend on to settle disputes and arbitrate/settle issues under contention. What this means is that judicial officers, by virtue of this noble duty entrusted them, must subscribe to high ideals of morality and ethics, to have the authority to pronounce themselves on the range of issues the Constitution empowers them to.
Chapter Six of the Constitution requires State officers to ascribe to principles of ethics and integrity to “bring honour to their offices”. It therefore won’t do to have judges and magistrates engaging in corruption and shady deals that bring disrepute to the offices they hold.
A story is told of a motorist who caused a fatal accident in Western Kenya that caused the deaths of members of his family through careless driving. A lawyer friend of his who lives in Nairobi called magistrate, who asked to be sent Sh10,000 to have the matter sorted out. When the judge called the prosecutor to his office to cut a deal, the prosecutor asked for five times that amount, putting the magistrate in the awkward position of having to renegotiate, which is how the incident got leaked to the public.
The Chief Justice need not threaten to institute another purge; let him proceed and do it! He has an appreciable number of honest, hardworking officers, whose good repute is what holds the Judiciary’s image together by strands. If, however, he does not immediately act to put an end to the errant, even criminal, ways of his officers, then the country’s justice system is going to the dogs.
As it is, Dr Mutunga enjoys considerable good will which he can depend on to carry out the cleansing he must do. The oath of office he swore when he took office requires him to, among other things, “protect, administer and defend the Constitution with a view to upholding the dignity and the respect for the Judiciary… and promote the competence and integrity within it”.
By putting off the punishment of corrupt judicial officers, wittingly or otherwise, Dr Mutunga is disowning that oath. The Chief Justice is a decent and diligent officer, and he need not take the fall for others who clearly do not give a hoot about the integrity of their offices.