Special Report Friday, October 3, 2003 JUSTICE ON TRIAL It won't be an easy task cleaning upKenya's graft-ridden JudiciaryIdentifying corrupt judges could turn out to have been the easier task if those targeted for removal refuse to go quietly. This could be be borne out by the words of Mr Justice Aaron Ringera when he presented the report on judicial corruption to Chief Justice Evan Gicheru on Monday. He said: "In handing over to you our report, we are, metaphorically speaking, presenting to you a dragon. It is bound to snort, jump, kick and even attack, for corruption always fights back." He added: "That notwithstanding, your Lordship will have no option but to seize it by the horns and slay it. Mr Chief Justice, the historic moment is yours. Seize it." It is accepted that there can be no compromise when a judicial officer is found to have been involved in corruption or unethical practices. A judge, however, enjoys protection of tenure. This is intended to ensure that the judge enjoys full independence so that he cannot be subjected to executive pressure or threat of dismissal. Removal of a judge is a long process that starts with formal notification that he faces specific accusations. This is followed by the appointment of an independent tribunal to hear evidence and make recommendations. A judge under probe is suspended but is free to resume office if cleared of any wrongdoing. In the history of the Kenyan Bench, not a single judge has been removed on the basis of recommendations of such a tribunal! When Narc came to power, it promised to clean up the Judiciary, but nine months down the line, only two judges have been forced out � Chief Justice Bernard Chunga and High Court Judge Samuel Oguk. Both were pressured to resign rather than face a tribunal or prosecution. Mr Chunga resigned on February 25, a few days after President Kibaki appointed a tribunal to inquire into his conduct. Mr Oguk, by contrast, resigned two weeks after he was arraigned on corruption charges. The report says five out of 11 appeal judges, 18 out of 36 High Court Judges and 82 of 254 magistrates feature in the Judicial List of Shame. In Kenya, the practice of removing an errant judge is to offer a deal � resignation with benefits on the one hand or tribunal or prosecution on the other. The five-man tribunal appointed by President Kibaki to probe Mr Chunga was in fact the first ever in Kenya. Other removal of judges include Chief Justice Kitili Mwendwa in 1971, Mr Justice Zacchaeus Chesoni, Mr Justice A. K. Sachdeva and Mr Justice William Mbaya. Mr Justice Chesoni, who has since died, was forced to resign in the early 1980s after bankruptcy proceedings were instituted against him. Bankruptcy disqualifies one from serving as a judge, and the feeling was that the Bench would be embarrassed by the spectacle of adjudicating in a case involving a brother judge. Then Chief Justice Alfred Simpson asked Mr Chesoni to resign. A few years later, President Moi reinstated him. The Judicial Service Commission rejected the appointment on the grounds that Mr Chesoni's conduct was "inconsistent with the position, dignity and judicial integrity" of a judge. Ironically, President Moi in 1997 appointed him Chief Justice after retaining him for five years as Electoral Commission chairman. In 1986, Justices Mbaya and Sachdeva retired prematurely from the bench. The two and Mr Justice Simpson had sat as a constitutional court in a case involving tycoon Stanley Githunguri. After the retirements, Chief Justice C.B. Madan was constrained to deny suggestions that the exit of the two had anything to do with the Githunguri case. "The reasons for their retirement should be sought form the two judges," Mr Justice Madan said. "You can't pressurise a judge to retire." In 1971, Mr Mwendwa, Kenya's first African Chief Justice, resigned in disgrace after he was implicated in a coup attempt. If he learns from the past, Mr Justice Gicheru will most likely call the suspect judges, confront each with the report's evidence and offer the option of a quiet exit. If the judge refuses to resign, the CJ will have no option but to set in place the machinery for a tribunal. He could also forward the matter to the Kenya Anti-Corruption Commission for further investigation and possible prosecution. Any option could present a political minefield. If the politics and tribalism around the exit of Mr Chunga and Mr Oguk are anything to go by, it could provoke a storm. The number of judges mentioned are nearly a majority and would be well-placed to fight. Their line of defence might be that they were first condemned on hearsay, rumours and false accusations. Then there is the effect of actions that could decimate the Judiciary. Already understaffed, overburdened and weighed down by a backlog of cases, the Judiciary would be hard-pressed to continue functioning normally if nearly half the judges were suspended. Unless, of course, they are speedily replaced. But still there would be the headache of what to do with the cases they are currently handling. Such cases cannot simply be transferred for another judge to continue, they would have to be heard afresh. |
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