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Guilty as charged: corruption rife in the judiciary

The Kenyan judiciary is at a crossroads following stunning revelations of massive corruption on the bench.
Zachary Ochieng

Kenya s judiciary is riddled with corruption. At least five out of the nine Court of Appeal judges are corrupt, while 18 of the 36 High Court judges have been involved in graft. In the lower courts, 82 of the 254 magistrates are corrupt as are 43 out of the 2910 paralegal officers.

The stunning revelations are contained in a report presented to Chief Justice Evan Gicheru early this month by the Integrity and Anti-corruption committee, headed by High Court Judge and former director of the Kenya Anti-corruption Authority Justice Aaron Ringera.

The committee established by Justice Gicheru was mandated to investigate and report on, among other things, the nature and forms of corruption in the judiciary, causes of corruption and its impact on the court process.

The report comes at a time when Kenya has ranked as the 11th most corrupt country in the world by the anti-corruption watchdog Transparency International. According to the damning report, corruption included demanding and accepting bribes, sexual favours, free transport and hospitality in return for partisan judgements. Corruption also included fraudulent accounting, fiddling official receipts and stealing of exhibits.

We are apprehensive that in handing this to you, we are presenting to you a dragon; it is bound to snort, jump, kick and even attack, for corruption always fights back. Your lordship will have no option but to seize it by the horns and slay it , said justice Ringera as he handed over the report to justice Gicheru.

Ringera added: The eyes of Kenyans are upon you. And even the eyes of frogs will be upon you. But we have every confidence that your lordship, being the bold and tested spirit which you are, will well and truly take such actions as will be to the benefit of the Kenyan judiciary and the people of Kenya at large .

Gicheru on his part responded: This is a battle we are going to fight without looking backward. We are going to mount this beast and wrestle it to the ground .

The Report on the integrity and corruption in the judiciary was released in two parts. The first part detailed the extent of corruption, reasons for it and how it should be fought. The second part contains a list of shame , also setting out evidence against those accused.

According to the report, one appellate judge was videotaped while receiving a bribe. The tape forms part of the evidence. The report also notes that abuse of office was rampant, with evidence being doctored and ensuring promotions based on patronage instead of merit.

The report recorded at least 22 causes of corruption, some of which are poor terms and conditions of service, greed, delays in hearing and deciding cases, ignorance of the public about their rights and the wide discretion given to the judiciary in deciding and dealing with cases.

The report a serious indictment of the judiciary also cites tell-tale signs of graft. They include judicial officers living beyond their known incomes and mixing unduly with litigants and their friends outside court, officers entertaining visitors in their chambers, particularly early in the morning or late evening when court premises are deserted, irrational judgements and involvement in business inconsistent with the calling as judicial officers.

The effects of corruption are noted in the report as poor economic growth, loss of confidence in the judicial system, increased crime, congestion in prisons and violence against judicial officers.

The report paints a picture of justice for sale, as according to it, almost anything the law demands is available for sale, replete with a tariff of corruption. It costs KES 15 million (US$ 192,307) to bribe an appellate judge and have a case decided in one s favour.

High Court judges take between KES 50000-2000,000, (US$641-25641) while magistrates demand between KES 3000-60,000 (US$38-769). And for between KES 40,000 1000,000 (US$512-12820), one can be cleared of a capital offence such as murder.

The report, among other things, recommends improved terms of service for the judicial staff, recruitment based on merit, fair transfer policy, disciplining errant officers and elimination of impunity in the service.

The release of the report elicited mixed reactions, as legal experts seemed divided on the matter. The Law Society of Kenya (LSK) chairman Ahmednassir Abdullahi challenged judges and magistrates named in the graft report to resign. We are of the considered opinion that a judge who has been implicated in a corrupt deal cannot continue to sit even for a day, and should not be given any judicial duty .

His sentiments were echoed by Justice Gicheru, who ordered those named in the list of shame to quit or face a tribunal. Said he: For the judges, the option is theirs. There is a way of getting out quietly without causing any ripples, but those who want hard tackling, we are prepared to go on with that kind of situation .

A stunned former Attorney General and minister for Constitutional Affairs Charles Njonjo remarked: I do not know where this breed has come from. They were not there during our time . But a senior counsel John Khaminwa complained that the report contained mere allegations, with the culprits not given a chance to defend themselves.

As debate rages on the validity of the report, crisis looms large in the judiciary. Judges enjoy security of tenure and cannot be sacked by the Judicial Service Commission, the government department that vets their appointment. An indicted judge can resign voluntarily and take full benefits.

The other alternative is for the president to establish a tribunal to investigate the conduct of such a judge. If found guilty, the judge is then dismissed without terminal dues and punished for his actions. This would be a precedent setting move in Kenya, for no tribunal has ever conclusively investigated a judge.

Early February, former Chief Justice Bernard Chunga, reeling from allegations of misconduct tendered his resignation five days after the president had appointed a tribunal to investigate his conduct. A month later, High Court Judge Justice Samuel Oguk followed suit after he was arraigned in court over corruption charges.

Legal experts paint a gloomy picture should all the affected judges resign, for it would mean fresh hearing of cases previously handled by them. If on the other hand, they refuse to quit, it would entail the establishment of a tribunal for each and every one of them, an exercise that the battered exchequer can ill afford.

Kenyans are eagerly awaiting the next course of action from the Chief Justice.

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