The recent nomination of eleven appointments to the Court of Appeal by the Judicial Service Commission raised questions about the independence and integrity of the Kenyan justice sector again. It is all too easy for most Kenyans to see this as a matter for lawyers and judges. Think again. Our courts directly and indirectly impact on our daily lives and we must pay more than a casual attention.
Eleven appointees were nominated to join the Court of Appeal by the Judicial Service Commission last month. Among them are some of Kenya’s finest legal minds. Dr. Kibaya Laibuta stands out for another reason, he could just be our very first blind judge ever. The Law Society of Kenya have nevertheless objected in writing citing the lack of diversity and exclusion of private lawyers from the list.
That the Law Society of Kenya male representative to the JSC Macharia Njeru, is at the centre of the debate is significant. Njeru ran and won a spirited reform-based campaign against the former incumbent Dr. Tom Ojienda. Key to Njeru’s campaign was a promise to fight corruption, promote the interest of lawyers, especially young lawyers and not to appear in court before any judge during his tenure as a Commissioner. It is nearly ninety days since he was elected. His voter-base must be watching keenly to see whether he and the JSC have the capacity to champion much-needed reforms.
It has been three years since that scathing and buck passing “nifanye nini?” address by the President during the State House Governance and Accountability Summit in 2016. The courts were in turmoil and clearly overwhelmed by corruption cartels. These cartels and their state collaborators had perfected sixty clear strategies to stop convictions in grand economic crimes and corruption cases according to the Society for International Development.
A chance personal encounter at the time with a very confident tenderpreneur explained how she had bribed the entire chain of court clerks, lawyers, witnesses, judges and journalists to “manage” her case. Her only regret was that she had not bribed the EACC before her case was taken to court. It would have been cheaper, she said. The old sad adage “Why contract a lawyer, when you can buy a judge” operates on a different level in Kenya. It’s more like “Judge: "Have you anything to offer to this Court before I pass sentence?" Defendant: "No your honour, you took every shilling."
The ethical integrity of our judicial officers is critical to building a country that upholds justice for all and operates under the rule of law. The Judicial Service Commission is a central instrument for achieving this. Chaired by the Chief Justice, the eleven members include four additional judicial officers, two lawyers, two members of the public and one person nominated by the Public Service Commission.
So powerful is the JSC, millions of shillings have been spent on recent Presidential like campaigns, flashy billboards and cocktails. A seat at the JSC has largely been seen in the past as an opportunity to influence or intimidate the grand corruption rulings and overall behaviour of judges and magistrates.
Public dissatisfaction on the terms and conditions of bail and whether State Officials can return to and govern the “crime scene” directly relates to this. Whether persons found guilty of corruption will be fined Kshs 1 million, jailed for 10 years or be ordered to pay tens of millions to compensate the people of Kenya has sadly been left to the discretionary sentencing of judges. In turn, most Kenyans polled on the State of Human Rights in Kenya in December 2018 now feel that are two different laws for rich and poor Kenyans.
As the investigative and prosecution arms of the Ethics and Anti-Corruption Commission, Directorate of Criminal Intelligence and the Office of the Director of Public Prosecutions find ways of working together more effectively, public attention must also remain focussed on our courts. Without a strategic vision, plan and an independent CEO and secretariat, will the JSC ever be able to transform the backlog of public complaints and reduce the four-year delays? Does it still work for the JSC to be chaired and numerically dominated by Judges? How do we get more consistency and deterrence in the sentencing of corruption and economic crime cases?
These are matters also for the public to pronounce itself. The Kenyan justice system is too important to leave to judges and lawyers to determine alone.
First published Saturday Standard, August 3 2019. Kindly reproduced here with permission from the Standard Group