The pile of integrity statutes appear unable to shake the entrenched corruption ecosystem; Kenya needs a complete shift in its political culture and values to get out of its present predicament.
By Kabakua Mbogori
On September 16th, 2021, Chief Justice Martha Koome launched her much-anticipated vision for the Judiciary. The blueprint is dubbed ‘Social Transformation through Access to Justice’. The vision promises easy and efficient access to the judicial system by litigants, particularly vulnerable groups and persons. It promises to widen the doors of justice to all Kenyans. The CJ argues, quite eloquently in my view, that achieving the transformative vision of the 2010 constitution will require the Judiciary to develop social justice jurisprudence that is sensitive to the vulnerabilities of the Kenyan people. The vision promises disposal of cases within three years and one year for appeals. The CJ’s vision is to have a High Court station in every county and a magistrates court in every sub-county. She further promises expeditious disposal of corruption cases and commercial disputes.
Moreover, the vision seeks to enhance procedures for holding judiciary staff accountable and strengthening the Judiciary Ombudsman’s capacity. These are ambitious goals but they are also achievable. The CJ must be commended for coming up with such a grand vision. It is a well-thought-out document, and I’m impressed with its precise targets.
Judicial corruption
But there is a big problem. CJ Koome’s vision mentions judicial corruption in a rather passive manner. Throughout the entire 50-page document, the word corruption appears only twice! Access to justice broadly means the ability of citizens to seek and obtain legal remedies. There are several obstacles to the achievement of the ideal of access to justice for everyone. This includes, among others, unreasonable court fees; unaffordable legal counsel; corrupt, unfair and inefficient judiciary. A corrupt judicial system cannot provide an effective remedy to victims of injustice. Corrupt judges are least inspired by lofty ideals of democracy, good governance and human rights. Their obsession of most is the amount of bribes they can extract from every file that is placed before them.
Speak with a random advocate, and you will be shocked at the nature and extent of corruption within the Kenyan judicial system. To put it bluntly, the Judiciary is in a sorry state and may collapse under the weight of corruption. It is an ugly situation that few are willing to talk about. It is widely acknowledged within the legal circles that many advocates in private practice are beneficiaries of this rotten system. For this reason, they cannot be expected to speak against it.
When a judge becomes rogue and gets absorbed in the ways and habits of corruption, everything turns upside down for the honest legal practitioner. Therefore, judicial corruption must be seen as a most urgent challenge calling for the immediate mobilization of all organs of accountability within our judicial system.
Many registries act like kiosks where litigants shop for all manner of judicial orders. You get a price quote based on the nature of orders you require. The issue of disappearing files is an enduring strategy of frustrating justice. It is still rampant in many registries. Some of the stories you hear about the Kenyan judiciary sound like a Hollywood movie. Unfortunately, these are the realities of our country.
A notorious magistrate based at Kirindine – a remote court station north of Meru town, has made a reputation for collecting bribes in broad daylight. Over time, bribery has become his crucial methodology of determining legal disputes. Most advocates in Meru know his ways, and many are frustrated and helpless. The JSC, which has received numerous complaints concerning this judicial officer, appears unwilling and/or unable to act.
A notorious magistrate based at Kirindine – a remote court station north of Meru town, has made a reputation for collecting bribes in broad daylight. Over time, bribery has become his crucial methodology of determining legal disputes. Most advocates in Meru know his ways, and many are frustrated and helpless. The judicial service commission, which has received numerous complaints concerning this judicial officer, appears unwilling and/or unable to confront the most obvious cases of judicial corruption even when evidence is overwhelming. This is just one example. I’m sure there are stories like this in many other court stations within the country.
For the honest lawyer, Kenya is one of the most frustrating jurisdictions to practice law. Lawyers are trained to persuade judicial officers through well-researched and reasoned arguments. In this country, however, bribery, gatekeeping, and influence-peddling are the most trusted methods of extracting favourable court rulings.
But it is encouraging to know that even with so little expectation on the judiciary by Kenyans, many judges and magistrates still see their role as vessels of delivering justice. This is the group that keeps hope alive. The High court’s Constitutional and Human Rights Division is particularly highly regarded by legal practitioners and the general public. Some of the most progressive jurisprudence in recent times has emerged from that court. Similarly, the court is home to the most erudite and well-respected judges in the country.
Radical Surgery and Narc’s collapse
To rationalize judicial corruption in Kenya, one must place it in its proper context. Judiciary is just a player in the broader society. It operates as a critical cog of the more prominent and complex machinery of government. Its ethos, behaviour, institutional culture and the general manner in which it executes its mandate all flow from the tone set by the regime of the day. The point I am making is that the executive branch, especially the president and his cabinet, plays a decisive role in determining the attitude of other institutions and the general society towards integrity issues.
Before NARC came to power in 2003, it was said that the Kenyan judiciary was so rotten that its stench had assumed a sense of normalcy. Within this context, the new regime carried out a putsch in the form of a “radical surgery”. The Surgery was so bloody and unprecedented that it claimed nearly half of the superior court judges. It was indeed a “short sharp shock”, as had been recommended by the commonwealth jurists. It named and shamed six of the 11 Court of Appeal judges, 17 of the 36 High Court judges and 82 out of 252 magistrates. All were suspended on allegations of corruption. Similarly, 142 court clerks were fired.
This momentous onslaught on corruption was short-lived because the regime actors who had spearheaded these anti-corruption efforts were soon caught with their hands deep in the cookie jar! After that, everything imploded, and the NARC government nearly collapsed.
In many civic matters, citizens take the cue from their government the same way a child learns from its parents. No citizen would take seriously a government that preaches water but partakes of sweet red wine. Instead, citizens are persuaded with a visible political will and concrete, practical measures of achieving declared policy goals. After a series of corruption scandals and political dysfunction, the NARC regime lost all credibility in executing its anti-corruption agenda.
In 2013, when KANU orphans took over the reins of power, all hope of renewing NARC’s anti-corruption program died. The looting enterprise was revived, and judicial corruption went through the roof. These days, it is not unusual to find loads of money stuffed in the chambers of judicial officers. It seems the accountability mechanisms of the 2010 constitution have failed, and we should go back to the drawing board.
Way forward
Experience shows that law as the primary weapon of fighting corruption is nearly hopeless. Kenya has probably over legislated on integrity and ethics. Aside from the constitution, there are many statutes that are supposed to sort out our corrupt mannerisms.
The Ethics and Anti-Corruption Commission Act, No 22 of 2011, forms the EACC, which is supposed to, inter alia, recommend prosecuting any acts of corruption or violation of codes of ethics. The Bribery Act of 2016 declares its intention of providing for the prevention, investigation and punishment of bribery.
Further, the Leadership and Integrity Act, 2015 is deemed our magic bullet against a morally bankrupt leadership and alien to the values of integrity and ethics. This Act is supposed to breathe life into chapter six of the constitution. Judicial officers are state officers who form part of the subject that the Act addresses. We also have the Anti-Corruption and Economic Crimes Act, 2003, which seeks to prevent, investigate, and punish corruption, economic crime, and related offences. It defines corruption and other offences such as bribery, fraud, embezzlement, abuse of office, and breach of trust.
The Public Officer Ethics Act Cap 183 seeks to advance the ethics of public officers by providing for a Code of Conduct and Ethics. It requires financial declarations from certain public officers.
Finally, the Judicial Code of Conduct is an elaborate code of conduct for judges and other judicial officers and members of judicial staff. It further provides for oversight over judicial conduct and the resolution of complaints.
With such an elaborate legislative framework, one would expect a corresponding adjustment in the behaviour of state bureaucracy and a similar adjustment in attitudes towards corruption. Instead, the levels of corruption keep rising. The piles of integrity statutes appear unable to shake the entrenched corruption ecosystem. Kenya needs a complete shift in its political culture and values to get out of the present predicament. (
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