An Executive Judiciary

Judicial corruption is found in State’s highhandedness

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BY NLM WRITER
A survey by Transparency International conducted in 2001 ranked the Kenyan Judiciary as the sixth most corrupt public institution in Kenya. In it, a large number of Kenyans who, in one way or another, seek out the services of the Judiciary admitted that they have been in circumstances where they had been asked to pay a bribe.

The problem was not only that the Judiciary was corrupt; it was then also considered as hostage to the Executive, where judges were handpicked by the ruling administration. This made it extremely difficult to find independent judges.

Eugene Cotran, a Briton who served as a judge in Kenya once said the President was involved in the decision making process of cases, especially the ones he had direct interest in. Other powerful individuals close to the President enjoyed similar privileges, and often read judgments before they were delivered!

Cases considered political by the ruling administration got the attention of the President who duly interfered. In 1995, Judges Bena Lata and William Mbuya, in a conference held at Mbagathi, admitted that Government often determined the decisions judges made, and asked it to stop interfering.

Justices Derek Schofield and Patrick O’Connor, expatriate judges from Britain, termed the Judiciary as “blatantly contravened by those who are supposed to be its supreme guardians.” The two resigned from their positions soon after.

Judge Frank Shields lost his job after listening to speech by the then Law Society of Kenya chair Paul Muite in 1991. The speech, which was presented at a dinner party, was critical of then president Daniel Moi and while other judges walked out of the speech in protest, Shields sat on and listened – a very anti-establishment act at the time!

In 1990, Muite, then also a multi-party crusader, lost the LSK election to Fred Ojiambo, a government sympathiser. It would later be revealed that the President was personally involved in ensuring that Muite lost the election. Until 1991 when Muite won, LSK was under the control of government.

Prof. Makau Mutua, in 2001, noted that the Judiciary lacked independence and portrayed submissiveness to the Executive.
The Judiciary has been subservient to the Executive. The Judiciary has shown no ability or inclination to uphold the rule of law against the express or perceived whims and interests of the Executive and individual senior government officials, their business associates, and cronies.

He further argued:
State officials and business associates of leading public servants have sought the protection of the legal system and the Judiciary for their illegal actions as official corruption has become the norm. An aggrieved party cannot expect rule of law to be upheld by a Kenyan court if the offender is a public official or is connected to the KANU elite.

Today the problem of backlog, which successive presidents of the judiciary have vowed to clear, persists. The disappearance of files in mysterious circumstances is also commonplace. Clerks, the police and the Prosecution collude all the time.

Florence Jaoko, who served as the High Court’s Deputy Registrar between 1985 and 1999 publically admitted that files at Nairobi Law Courts had a habit of “disappearing, and rulings are altered without the knowledge of trial magistrates.”

The power of the Chief Justice has been limited. In the past, the CJ decided which judge would listen to a particular case – which power they horribly abused. It was for this purpose that the Justice Aaron Ringera-led ‘radical surgery’ happened – to rid the institution of corrupt elements.

The Ringera Committee in its report stated:
…From an establishment of 3,234 officers as at 30th August 2003, comprising 11 Judges of Appeal, 44 Judges of the High Court, 254 Magistrates, 15 Kadhis (Islamic Courts) and 2,910 paralegals, 152 judicial officers were implicated in corruption of which 105, or 69 percent, were Judges and Magistrates. In the highest court in Kenya, the Court of Appeal, 56 percent were implicated.

It noted further:
In the High Court, 50 percent were implicated. In the ranks of Magistrates, 32 percent were implicated. Aware that the representations and submissions made against Judicial Officers had necessarily to be tempered for various good reasons; there nonetheless were substantial allegations of corruption, judicial misbehaviour and want of judicial ethics. 5 Court of Appeal Judges (56 percent), 18 High Court Judges (50 percent), 82 Magistrates (32 percent) and 43 paralegal officers were implicated in Judicial Corruption, misbehavior or want of ethics.

How well are we doing now? Badly – very badly. Just sit in on any court proceedings, or visit the registry, and see what opinion of the courts you come away with. It is a shame.

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