Another take on why judicial purges will always fail

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Kelvin Njuguna Mugwe

Jean-Baptise Alphonse Karr opined in one of his epigrams that “plus ca change, plus c’est la meme chose”, which when translated means “the more things change, the more they stay the same”. This witticism has gained undesirable significance in Kenya. The salient features introduced in the Kenyan Constitution 2010 cannot be overemphasised. It is trite knowledge that the promulgation of the Constitution was meant to usher Kenya into an era of change. However, it is scandalous to note that this has proved hopelessly elusive. Far-reaching changes formed the cornerstone of the new constitutional dispensation.

Unfortunately, the status quo still lingers tenaciously. The independence of the Judiciary, as envisaged under Article 160, appears unattainable. The ignominious nature of the members of the National Assembly is clearly immutable despite the significant provisions of Chapter Six on Leadership and Integrity. The executive is desperate to rediscover the archaic way of running the government, and most of its members are engulfed by kleptomaniac proclivities. The executive has gone ahead and formed a strong partnership with the legislature where draconian laws that stifle the independence of constitutionally established commissions have been passed and at times even sneaked in. Detailing how there has been systematic mutilation of the constitution and the preservation of old habits cannot be exhaustive. The vetting of judges, however, which was a new and endearing provision in the 2010 Constitution, is what I seek to discuss.

Popular political columnist William Safire in his “On Language” column in the current New York Times elucidated the term vet in the following manner; “Now, the verb to vet means ‘to search for weaknesses or flaws’; the noun ‘vet’ continues to mean ‘animal doctor,’ but the noun for the person who does the vetting preparatory to clearance of a nominee for public office or candidate for any job is a vetter.” One can therefore reasonably decipher from the foregoing that vetting entails the examination of a judge to determine their suitability for the job by a person bequeathed with that responsibility.

Vetting of judges in Kenya is predicated upon Article 23 of the Sixth Schedule of the Constitution, which vests Parliament with the responsibility of enacting legislation which shall establish mechanisms and procedures for vetting judges. This provision was faithfully implemented when the Judges and Magistrates Vetting Act, 2011 (“the Act”) came into force on March 22, 2011. The Act, under Section 6, established the Judges and Magistrates Vetting Board (“the Board”), which was conferred with the task of vetting judges and magistrates in accordance to the provisions of the Constitution and the Act.

Public criticism

The board was expected to be a panacea to all the maladies that had inhabited the Judiciary that had even led to the Constitution of Kenya Review Commission in its report titled, “The People’s Choice: The Report of the Constitution of Kenya Review Commission” to state that the Judiciary rivalled politicians and the police in receiving public criticism. This was not the first attempt to sanctify the Judiciary. The Government had established the “Integrity and Anti-corruption Committee of the Judiciary in Kenya, 2003” chaired by Justice Aaron Ringera, which was tasked with implementing the policy popularly known as “radical surgery”.

The outcome of the process was anything but spectacular. The Committee identified cases of corruption and judicially-unacceptable practices in the conduct of 56 per cent of the Court of Appeal judges, 50pc of the High Court judges and 32pc of the magistrates. Those found culpable were required to resign or face suspension without pay or privileges.

Despite coming up with the findings and novel recommendations, the Committee was criticised for failing to give the judges and magistrates appropriate notice before they were publicly named. It was also not surprising that the requirement that they had to resign was not received well. It is against this backdrop that the modus operandi of the board was documented with utmost precision and clarity in the Act.

The concern of lack of notice as addressed in Section 21 of the Act explicitly provided that the determination of the board shall be notified to the judge or magistrate within thirty days. However, the condition that a judge or magistrate found unsuitable had to be removed from service was retained with the only reprieve being, they could seek a review from the board. However, the epitome of precision and clarity in the Act manifests itself under Section 18 where relevant consideration of the board when vetting, are enumerated.

The board envisaged that adherence to these considerations would, among other things, restore public confidence in the courts as well as secure a fair and impartial Judiciary. There has been utter failure in actualising this if the current grotesque state of the Judiciary is anything to go by.

The Act made it imperative that a suitable judge should meet the constitutional criteria for appointment as a judge or a magistrate. The Constitution of Kenya succinctly stipulates under Article 166(2) (c) that a judge should have a high moral character, integrity and impartiality. The great importance attached to the integrity of the judge is also evident under Section 18(2) (c) of the Act. A vital element of integrity under this section is the demonstration of consistent history of honesty, as well as high moral character in the judge’s professional and personal life.

The question of integrity was unsurprisingly ubiquitous during the vetting process. For instance, Justice Joseph Sergon was faced with damning allegation of financial impropriety both while on the Bench and during his stint as an advocate. He was accused of engaging in corrupt dealings and failure to timely inform one of his clients that judgement had been entered in her favour. In its first determination, the board found the judge unsuitable for lacking fiscal integrity. He was, however, reinstated upon review where he indicated that the client’s money he was accused of hoarding was being remitted to the law firm in instalments. Despite its decision, the pertinent of issue of integrity of a judge was not sufficiently appreciated and still remains rife in the Judiciary.

There was the creation of the Judicial Service Commission under Article 171 of the Constitution, which was mandated with appointing, discipline and removing of judicial officers. The conduct of affairs of the Commission is regulated by the Judicial Service Act, 2012 (“JSC Act”). It is of immense significance to note that the criteria for evaluation of qualifications of judges in the Act mirrors the provisions of Section 18 of the Judges and Magistrates Act, 2011. These qualifications are enlisted under Section 13 in the 1st Schedule of the JSC Act. The relevance of the abovementioned is that both the board and the Act embraced a universal approach in determining the suitability of judges and magistrates. The yardstick entrusted by the board in deciding the aptness of judges and magistrates is the same adopted by the Commission in appointing judicial officers. There is a justified temptation therefore to conclude that the level of integrity expected from judges and magistrates who have undergone vetting either under the board or the commission, is not subject to eclectic interpretations.

Notwithstanding the foregoing, the recent revelations that Honourable Justice Philip Tonui of the Supreme Court allegedly received a bribe to the tune of Sh200 million, demonstrates how integrity of our judges, or lack of it thereof, remains a serious concern. The fact that the accusations involve a judge of the Highest Court in the land is not only sordid but also brings to the fore questions concerning the integrity of all the judges as a whole. There is a general consensus that the Supreme Court should be beyond reproach, like Caesar’s wife, to the extent that inquests into its integrity should never arise even on an imaginative level. There is, however, a melancholy state of affairs, not just at the Supreme Court but in the Judiciary as a whole.

Farce of a last hope

The sanctity of the Judiciary as a subject for debate has arisen at every available platform. Lawyers have been at the forefront in spelling out the ills that have grasped the Judiciary. The Mombasa Law Society branch even resolved to embark on an audacious plan to collect signatures so as to petition the removal of the Chief Justice on the grounds that “…he had chosen to demonstrate gross impunity and autocracy in leadership…and making the situations in the court worse”. An array of complaints have been raised by lawyers that bring into question the moral standing of the court, with some even calling for the dissolution of the Supreme Court.

The situation at the Judiciary is not good and the Chief Justice admits as much. During a yearly colloquium at Mombasa last year, the Chief Justice admitted that corruption had crept back to the institution and even stated that he would introduce a vicious vetting process to disqualify corrupt judges and magistrates. He further asserted this position in an interview with Dutch newspaper, “NRC Handelsblad”. He quipped: “…you are taking these people into a corrupt investigating system, through a corrupt anti-corruption system, and a corrupt Judiciary.” This admission by the Chief Justice clearly diminishes all doubts about how the Judiciary has been devoured by corruption, and affirms the massive derogation of integrity among the judges and magistrates.

Senior Counsel Ahmednassir Abdullahi averred in an opinion piece in the “Daily Nation” that all efforts to clean up the Judiciary will always fail. Abdullahi indicated that “we are trying to cure a societal malaise with a heavy dose of constitutional and statutory prescription. It is not working; it won’t work. You cannot cure the Judiciary in isolation of the larger society.”

These sentiments ought to be treated with profound seriousness since the legal trajectory repeatedly adopted in an attempt to purify the Judiciary has always ended up in spectacular failure.

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