The imperative of judicial accountability is inviolable, both as a matter of constitutional compliance and as a matter of good practice and as an antidote against judicial impunity and the anarchy of “mtado?” jurisprudence. But at the same time, method matters; a scorched-earth policy may be ruinous to the very constitutional principles we seek to protect and the new judicial order we hope to create. Which is why when it comes to the Judiciary, I urge Kenyans to consider the wisdom of the English saying: Do not throw the baby out with the bathwater.
One of the indicators of success of any institution in this country is when an institution is under attack by the executive, parliament, and the inclusive elite that controls the two arms of government. Had the judiciary been captured, you would not now be hearing the noise currently being made by the elite. This is an indicator that the judiciary is doing something good, even if the institution has its own fault lines.
The judiciary has historically been one of the most self-examining and self-evaluating institutions. One only has to look at the plethora of reform blueprints produced and implemented over time, all in an attempt to restructure and reform the institution. Most of these have been successful – especially since 2010 – and still continue to date. Indeed, on discipline alone, the data from Judicial Service Commission (JSC) shows that since 2011, the Commission has forwarded 12 petitions to the president to have him appoint tribunals to investigate the conduct of judges – on average one judge per year! That’s staggering. The numbers are much higher for magistrates and judicial staff.
The fundamental essence of the Kenyan judiciary
Even for those who attack it, the judiciary stands between the Kenyan people and a dictatorship that turned 61 years old on Jamhuri Day last year. Even the elite itself knows that when their interests are at risk – within their intra-elite struggles and squabbles – this is the institution to run to for protection. The judiciary remains a bulwark against those who find the constitution and the law inconvenient – the same people who swore to obey, preserve, protect, and defend this Constitution of Kenya, as by law established, and all other laws of the Republic. The elite in Kenya prides itself in being religious and they always loudly repeat the final words of the Oath of Office: So help me God.
The judiciary as its own worst enemy
Let me be the first to say that the judiciary can be its own worst enemy. It has its own divisions: political, ethnic, religious, regional, gender-based, and generational. Corruption does exist, which is the reason why the JSC data alluded to above looks that way. It shouldn’t be common or routine for judges to be referred to tribunals at the rate of one a year. That is an indictment. Its performance and productivity seesaws and the tools to track performance – such as the Case Tracking System (CTS) – are great but are yet to become fully effective. Stories abound of judges and magistrates uploading blank judgments on the portal, a dishonesty most vile from public officers most high. There certainly exists Judiciary laziness and incompetence that has to be tracked and dealt with from within. The “pledges to the public” that were useful in creating allies from the Kenyan people – as indeed, does the African Justice System that has robustly sought to integrate the formal and informal justice systems – must be implemented continuously. The JSC must fast-track petitions filed seeking to remove judges. It should also-fast track disciplinary proceedings against judicial officers. The judiciary promptly publishes the annual State of the Judiciary and Administration of Justice (SOJA) report, a very rich accountability tool that needs to be widely publicised.
Although the SOJA report is supposed to be tabled and debated in parliament, I do not recall this being done during my time as Chief Justice. What I recall was parliament attacking the judiciary for failing to submit the reports while they were actually gathering dust on the shelves of the august house itself. I admit there is the challenge that the spirit is willing but the flesh is weak because of inefficient funding, but let the judiciary flag these issues and place them in the public domain. It cannot be that the judiciary, which has a presence in every part of the country, sits every day, and has almost 7,000 staff, receives a budget that is three times less than that of parliament that is based in Nairobi, sits three days a week and has about 1,000 staff members. Both the executive and the legislature have laid the unconstitutional claim that they own the resources of the republic. Nay, the resources belong to the people of Kenya who have delegated their sovereign power to both institutions. It is fundamentally the duty of the people of Kenya to ensure that the judiciary has the resources it needs.
Like other state institutions, the judiciary is not immune to corruption although I hasten to say that those who constantly point fingers at judiciary on this issue are fundamentally those who have no moral authority to do so. Others are possibly agents of those who find the constitution and the judiciary inconvenient. Such people and institutions should be well advised to practise the wisdom of the Kiswahili saying Nyani haoni kundule/The Monkey Does Not See Its Red Posterior. Again, I believe judges, judicial officers, and judicial staff should not be their sister’s/brother’s keeper when it comes to issues of corruption involving colleagues. Even perceptions and gossip need to be interrogated and discussed. The Judicial Academy, the judiciary’s institution for higher learning, is a great space for such family discussions. That is how the judiciary will become a strong institution, devoid of termites within it. The college of judges and magistrates must call out their colleagues who routinely get mentioned in graft cases. No better antidote against corruption in the judiciary can be found than one that constitutes an anti-corruption institutional culture and a peer intolerance to behavioural maladies of fellow colleagues.
The judiciary is not infallible
The judiciary is not infallible. It is not an angelic judiciary. Respecting critics, and responding to criticism is a great strategy to win the judiciary public respect and following. Even the insane have sane moments. Listen to them, separate the wheat from the chaff and go forward.
When we promulgated the constitution, Articles 168 and 172 on recruitments, disciplinary processes, and removals sought to ensure that the judiciary would be run by Kenyans who would build a new judiciary. The old judiciary, colonial and postcolonial, was an appendage of external and domestic interests and forces. We knew these challenges would persist and that is why the constitution provided for the processes of dealing with such eventualities.
The judiciary is reinforced by various institutions within it that can bring about collective institutional leadership that would protect its independence and integrity. These institutions include the JSC, Kenya Judiciary Staff Association, Kenya Magistrates and Judges Association, Kenya Women Judges Association, and Judiciary Leadership Team (formerly Judiciary Leadership Advisory Council). The perceptions that the Chief Justice is a judicial monarch because she/he bears the title of the head of the judiciary continue to exist because Kenyans do not seem to know how the Judiciary is ruled. It is important that the judiciary explains to the Kenyan public how it is democratically ruled.
Chief Justice Koome has rightly opened the doors of the judiciary doors to discussions with its critics, including the Law Society of Kenya (LSK). It is also important to applaud the judiciary for keeping the courts open 24/7 for hearings of applications for habeas corpus. The applications can be made online and there is a judge on duty to hear them. In this season of the plague of abductions, extrajudicial killings, false arrests and malicious prosecutions, kidnappings, and disappearances, the judiciary has done the right thing to protect the rights of Kenyans and those foreigners who are protected by our constitution and the law.
Critiques of the judiciary from the bar
On the issue of the critique of the judiciary by the LSK, my position has always been that if individual members or the institution itself have the evidence, the honourable route is to file petitions for disciplinary action with the JSC as decreed by the constitution. It does not matter whether or not those petitions are weaponised by political interests. They will be heard. If the honourable route of filing petitions to the JSC is not followed, I am sure the judiciary will continue its existing culture of dealing with both malicious and genuine critiques against it. I have always held the view that the bench and the bar are twins joined at the hip of justice. Indeed, the judiciary is where the bar sells its practice. If the judiciary is destroyed because of the acts of the bar, how will the bar – particularly those of its members who owe their livelihoods to the judiciary’s existence – deal with the calamity? I believe the LSK knows that some of its members are purveyors of the corruption in the judiciary. Should they not be investigated and disciplined by the LSK?
The evil genius of the Kenyan elite
Kenyans should understand that the evil genius of the Kenyan elite (and its economic, social, cultural, intellectual, religious/theological anchors) lies in the politics of division. The elite remains a danger to the judiciary because of not respecting the values and principles in the constitution. The elite subverts court orders with impunity. Even when politicians and public servants are summoned to court by lawful judicial orders, the orders are routinely disobeyed. The government is fundamentally the main culprit in this disobedience of court orders. Such disobedience is tantamount to overthrowing the constitution. While Kenyans are quick to blame the judiciary on this issue of disobeyed orders, I have always wondered whether as citizens we know we have constitutional powers to arrest these politicians and public officers and hand them over to courts for punishment.
Kenyans, it will be a national tragedy if you throw the baby out with the bath water. The Judiciary is your baby in this metaphor.
Patria o muerte! Motherland or death!