“Fundamental rights and freedoms and the rule of law are vital checks and balances in any civilised society but meaningless without the access to justice” – Shami Chakrabarty, former Chancellor of Oxford Brookes University
It is trite that the pervasiveness of corruption in the Judiciary and the legal profession, whether one-off or endemic, is a major impediment to the rule of law as it bestows the fate of the citizens to men and not the law. Generally, under a system of good governance, the courts are expected to be impartial and fair institutions. In this regard, the judicial system is intended to be apolitical, its symbol being that of blindfolded justice holding balanced scales. Indeed, it’s only such a judicial system that can bring impartial justice where acts of corruption have taken root in the system and are disguised as justice.
In Kenya, the promulgation of the Constitution 2010 brought with it a new life in the administration of justice. Senior Counsel Ahmednasir Abdullahi stated thus: “Gone is the era when the Executive would announce the appointment of candidates to high offices through mystical rituals that were difficult to rationalise. Gone is the era when the only consideration for the government was the tribal or political affiliation of the candidate.
Gone is the era when appointments were used as a rewarding tool for the loyalty a community shows to the President.” However, in trying to establish an independent Judiciary through the famous radical surgery, it appeared that the Judiciary, currently under controversy, is in itself bound by chains of corruption.
The issue of fighting the corruption bedevilling our country cannot be solved by focusing on the judiciary alone. Corruption affects everything and everywhere in the country. However, it should not be assumed that the Judiciary does not have a role to play; in fact, it cannot absolve itself from blame. Just as it is not open to a doctor to reject blame for incompetence or negligence on account that the patient was careless in infecting himself with the ailment for which he is being treated, so would a judicial officer not be exculpated if he failed to perform his duty according to law and practice.
Corruption of corruptions
In other words, a corrupt judiciary is a serious impediment to the success of any anti-corruption strategy. An ethically compromised judiciary means that the legal and institutional mechanism designed to curb corruption, however well-targeted, efficient or honest, remains crippled. Corruption within the judiciary can create a malicious multiplier corruption effect on the rest of the public sector. In my view, judicial corruption can be viewed as a “corruption of corruptions” because those whose responsibility it is to interpret and enforce the rules of law to counteract corruption are themselves corrupt
The independence of the judiciary is an integral part of democracy, intended to shield the judicial process from external influences and to provide full legal protection to all individuals going to court for whatever reason. However, it is important to understand that the independence of the Judiciary is neither an end in itself, nor a personal privilege of the judges. The main function of the independence is to guarantee the right of an individual to have his/her rights and freedoms determined, protected and implemented by an independent and impartial judge.
Justice Cardozo eloquently stated that: “The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinate to “the primordial necessity of order in the social life.”
Further, Justice P N Bhagwati, in “S.P. Gupta v. President of India A.I.R. 1982 S.C 149 at 197-98” stated that; “The Judiciary stands between the citizen and the state as a bulwark against Executive excesses and misuse or abuse of power, or transgression of constitutional or legal limitation by the Executive as well as the Legislature.”
Therefore, in corrupt judiciaries, citizens are not afforded their democratic right of equal access to the courts, nor are they treated equally by the courts. The merits of the case and applicable law are not paramount in corrupt judiciaries, but rather the status of the parties and the benefit judges and court personnel derive from their decisions.
The above view conveys a pathetic and unfortunate reputation of the Judiciary, a body whose primary role is to combat corruption, and administer justice. Lord Denning remarked that “Judges should be beyond reproach and scorn. They should not be persons who can be questioned by the people with scorn, such as “who made thee a ruler and a judge over us’’.
What the Judiciary is expected to do in a case of corruption brought before it is to ensure that justice is not only done, but manifestly seen to be done. So, the court must acquit where such decision is warranted, convict where the corruption matter before it so warrants, and sentence appropriately in accordance with the guiding principles and relevant laws of the land. In “R v Sussex JJ Ex Parte Mc-Carthy, (1924) 1 KB. 256”, Lord Hewart held that “It is not only of some importance, but of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
Judicial corruption is in itself a systemic problem and addressing ethics alone is not sufficient to tackle the problem. The judicial system may be structured to foster corruption. The external pressures on a judge to act unethically are greater, and the risks of being caught and punished are lower.
Nilfat Kassim, a learned colleague, once put it that; “Corruption is the product of a failed system.” Therefore, as the upholder of justice and individual rights, an impartial and incorrupt judiciary is essential to the good governance and development of any nation. A corrupt Judiciary may negatively impact all sectors of government by stunting trade, economic growth, and development, as well as by depriving citizens of justice.
In order to fight this corruption, Kenya must embark on a process of reform that begins with understanding and emulating the characteristics of an incorrupt system. Judicial systems that routinely provide adequate access to justice and timely and impartial delivery of justice and that generally uphold the rule of law typically display the following qualities:
In “Baker v Carr, (1962) 369 US 186”, the supreme court of the United States held that “The Court’s authority is possessed of neither the purse nor the sword but ultimately rests on sustained public conﬁdence in its moral sanction.”
Judicial integrity connotes the respect that citizens have for judicial ofﬁcers and the conﬁdence they have in the decisions of the Judiciary. Integrity implies adherence to truth, soundness, uprightness and purity.
It is deemed the heart and soul of the rule of law. To support a judiciary that embodies integrity, it is necessary to establish clear codes of conduct, provide ethics training and education to judicial officers, and create adequate mechanisms for receiving complaints from the public and from other judicial officers.
A clear code of conduct, which provides a model for ethical judicial behaviour, is essential to reform. The most widely used ethics code is the 2002 Bangalore Principles of Judicial Conduct. The Bangalore Principles present six values essential to the proper performance of judicial office and to the maintenance of high standards of judicial conduct. These values include (1) independence, (2) impartiality, (3) integrity, (4) propriety, (5) equality, and (6) competence and diligence.
The Bangalore Principles are designed to provide guidance to judges and to afford the Judiciary a framework for regulating judicial conduct, while presupposing that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards, which are themselves independent and impartial, and are intended to supplement and not to derogate from existing rules of law and conduct which bind the judge. While it is not necessary for the Kenyan Judiciary to adhere directly to the Bangalore Principles, implementing and following a similar code of ethics will aid in the protection of judicial integrity and efficacy.
Holding judicial officers accountable for their conduct is a necessary prerequisite to an efficient and effective justice system. Accountability requires not only strict adherence to codes of conduct and ethics but also appropriate punishment for breaches of those ethics.
Article 11 of the UN Convention against Corruption emphasises the importance of judicial accountability, and it indicates that “each State Party shall, in accordance with the fundamental principles of its legal system and without prejudice to judicial independence, take measures to strengthen integrity and to prevent opportunities for corruption among members of the judiciary.”
Furthermore, the judiciary should be open to complaints and suggestions from the public while also protecting judicial officers from frivolous and groundless accusations from individuals or institutions seeking retribution for past adverse judgments. This requires a formal system for the lodging of complaints and standardised and publicised procedures for investigation and review.
Open access to the public and transparency in procedures and actions of the judiciary further promote an effective and incorruptible justice system. Therefore critical steps to maintain transparency in the judiciary, include: annual reports by the judiciary on its activities, financing, governance, and organisation; publication of laws and judicial opinions and most importantly, a declaration of assets and income by judges and senior judicial staff. The right to information is necessary to enhance judicial transparency, raise public awareness about corruption, and allow society to engage in the fight against corruption.
Perhaps one of the most challenging but essential areas of improvement for the judicial system lies in the efficiency and organisation of the judiciary and the court systems themselves. An efficient and effective judicial system minimises opportunities for delay, abuse, and corruption, and provide timely public access to justice.
The first step towards increasing judicial effectiveness and efficiency lies in the automation of court management and the adjudication process. Computerisation of records allows for easier access and better organisation, and prevents the loss of paper files and improper interference with documents.
Increased access to justice and the judicial system may be achieved through the implementation of alternative dispute resolution methods. These methods will not only increase public access to justice, but will also reduce the burden on the Judiciary, allowing resources to be devoted to anticorruption and the more efficient and effective resolution of cases. Nigeria has implemented an alternative dispute resolution system that has proven effective in increasing access to justice and judicial efficiency. The Citizens’ Mediation Centre (CMC) processes legal disputes through mediation for individuals who cannot afford to go to court. Therefore, by decreasing the volume of cases seen by judges, alternative dispute resolution will allow the Judiciary to devote more resources towards anticorruption measures.
The principle of fairness and due process of the law automatically become undermined when instances of corruption occur in institutions of justice. Further, public confidence becomes eroded on whether judicial outcomes are just, and are made without undue pressure or influence from the outside. Therefore, when or if such perceptions become commonplace, their effect can lead to a weakened public trust in government as a whole.
It is, however, worth giving credit to the Judicial Service Commission (JSC) for their laudable efforts in fighting corruption. However, too often, under the facade of independence, corrupt judicial officers remain untouched. This is a dilemma that is hard to solve – balancing legitimate concerns for independence of the Judiciary while keeping it accountable in case of abuse.
Open up Judiciary
But it doesn’t have to be that way, and change is possible in judicial system. The JSC must call on the Chief Justices to go beyond a principle-based approach by opening up the Judiciary to peers from across the region to illustrate transparency and accountability.
Member of the Judiciary also need to undertake assessments to strengthen institutional integrity and effectiveness.
Therefore, rather than starting with the question of how to modernise the court system, such efforts should begin by evaluating where the justice system fails, which failures function as constraints on advancements in development, and, given the resources available on the local level, what steps can be taken towards a better system.
The Judiciary, being the only beacon and anchor of integrity, has a vital role to play in Kenya and being engaged in corruption scandals shouldn’t be one.