Why Kenyans Are Cynical About Their Judiciary

By Ogova Ondego
Published September 22, 2008

Malpractice in the judiciary has made Kenya a land of fear, uncertainty and cynicism. A survey we carried out on the court system in this East African country over the past eight years has consistently shown that the citizenry is not only cynical to and is alienated from those in power but also holds the nation’s institutions in contempt. Consequently, the people are calling for a purge of the judiciary–regarded as the last bastion of the oppressive Kenya African National Union (KANU) regime they rejected on December 27, 2002–as a means to restoring their faith in and respect for the law courts as an impartial dispenser of justice. In fact, they say, the Kiswahili epithet of Nchi ya Kitu kidogo (land of graft) that Kenya has come to be identified with, stems from a corruption-ridden judicial system.

It is, therefore, hardly surprising that constitutional lawyer, Kiraitu Murungi, vowed to clean up the mess soon after being sworn in as Justice and Constitutional Affairs Minister in early January 2008. Soon after, Tigania East Member of Parliament (MP), Peter Munya, demanded that Chief Justice Bernard Chunga resign for what he termed Chunga’s unwillingness to reform the judiciary. Seventeen civil societies–among them Law Society of Kenya (LSK), International Commission of Jurists, Federation of Women Lawyers, Kenya Human Rights Commission, National Council of Non-Governmental Organisations (NGOs), Transparency International, Kituo cha Sheria, ActionAid, and African Women’s Development and Communication Network (Femnet)–joined in the fray.

As the pressure on the CJ Chunga mounted, Finance Minister David Mwiraria accused some judges of colluding with contractors in fleecing the exchequer. Then the Kenya Anti-Corruption Authority questioned a judge, Samuel Oguk, over alleged impropriety in the manner in which he had handled a case only compounding an already bad situation.

Late in 2007, LSK led a boycott of the law courts and street demonstrations to protest against the bench for its perceived anti-constitutional reforms stance after two judges–Moijo ole Keiwua and Vitalis Juma–had sued the Constitutional Review Commission of Kenya for recommending reforms in the judiciary. Critics interpreted this action to mean that little had changed in the country since 1996 when a London-based human rights body, Africa Rights, had claimed that the judicial system in Kenya had been replaced by a shadow system based on money and influence and that the average Kenyan, living in fear of the formal mechanisms for justice, does not turn to them for help. The organisation had noted: “A country in which the people have no faith in the justice system is a country in crisis.” Most Kenyans interviewed say their faith in the administration of justice is almost nil.

While a journalist who reports from the Nairobi Law Courts says “There is little justice in Kenya as the rich wrong-doers hardly ever get convicted, ” a Kajiado businessman says he knows “many criminals who have never been to jail because they always bribe the bench.”

A senior lawyer specialising in civil matters contends that corruption is rampant at all levels of the judiciary. “Corrupt Magistrates and Judges”, he says, ” have established syndicates through which they solicit and receive bribes. You cannot suspect them of or even connect them with the vice.”

While some judges have money directly deposited in their local and foreign bank accounts, legal sources say, others use lawyers as a conduit of corruption.

Human rights lawyer and Member of Parliament, Mirugi Kariuki, argues that Magistrates and Judges who did bidding for the ousted KANU regime were given a free hand in soliciting bribes.

“Two Magistrates in Nakuru used to openly ask for bribes from litigants in return for favourable hearing. At one time a Senior Superintendent of Police laid a trap for one of the magistrates and locked him up at Kericho but was sacked for his otherwise commendable job,” Kariuki, who used to practise in Nakuru, says. “I used to see queues of people who had come to ‘greet Mzee’ (bribe) every morning before the chambers of this magistrate.”

Lawyer Rumba Kinuthia, who at one time was charged with treason by the KANU regime, says ” Judges and Magistrates take bribes and subvert justice daily; with judges styling themselves as appendages of the Executive arm of Government, it is rare for a lawyer to win a case in which the Government is an interested party.”

Saying that lawyers fear to speak against evils done by the bench lest they be victimised, Kinuthia argues, “Some of us are already blacklisted and revealing certain information on the judges and magistrates would not only expose us to hostility from the bench but also give them an excuse to come after us mercilessly.”

So, out of fear, most lawyers remain tight-lipped even when they know that justice has miscarried.

Kinuthia says that some clients confide in him that they have bribed magistrates after the magistrates tell them not to waste time and money on lawyers when it is they, magistrates, who would determine the outcome of their cases.

Asked to comment on corruption in the judiciary, a Senior Resident Magistrate at the Nairobi Law Courts retorts, “What is there to say about corruption? Corruption is everywhere. By its very nature it is a hidden offence.”

Her colleague, a Chief Magistrate, says, ” Corruption is everywhere.”

Attempts to contact judges bore little fruit. While some gave us appointments only to decline when we turned up and others referred us to their colleagues arguing they were better suited to comment, others just didn’t want to talk to the Press.

At the Solicitor-General’s offices, the support staff demanded to know why we wanted an interview with their boss. When we declined an explanation, they retorted in Kiswahili, “Hata ukikataa kuzungumza ni lazima tutasoma file yako. Kwani ni wewe wa kwanza kutaka kusaidiwa na kesi?” (Even if you refuse to tell us what you want, we will still access your case file. Do you think you are the first one to come here seeking ‘assistance’?)

While not denying the existence of corruption in the judiciary, the then Registrar of the High Court, Jacob Ole Kipury, said, ” Corruption is like sex. It’s done between two consenting adults. As such, it is difficult to prove its existence. There is a bit of corruption but whenever the culprits are caught they are dealt with swiftly.”

William Ouko, then Chief Court Administrator, said, “It is on the technicalities of the law that people are losing faith in the judiciary. Sometimes an apparently ‘innocent’ person may end up getting convicted for technical reasons while a ‘guilty’ one may go scot-free. But this is often due to technical reasons – not corruption per se.”

However Ouko, who has since succeeded Ole Kipury as Registrar, said that if one incident of corruption occurs, it should not be taken to mean that the whole judicial system is rotten to the core.

Nzamba Kitonga, then the LSK chair, contented that “There is a confidence crisis on the part of the consumers of justice in Kenya. They have no faith in the judiciary” due to what he termed “corruption, preferential treatment accorded some powerful individuals, and the outdated system of justice in Kenya.”

A Mombasa lawyer argues that it is members of the public who try to buy justice from magistrates and judges who initiate corruption.

A Kisumu advocate concurs: “Kenyans have been conditioned to think that nothing can get done without kitu kidogo. Some of my clients bribe magistrates and judges and then tell me: ‘You can’t lose this case. I have already seen the judge who has promised me victory’,” she says.

Corruption, she says, is a cancer permeating the whole society and that it cannot be addressed in the judiciary alone.

According to Ole Kipury, pressure from relatives and friends may force a magistrate or judge to bend backwards. “While serving as a Magistrate, people often approached me to rule cases in their favour. Even today I still receive calls from people asking me to prevail upon some members of the bench to favour them but I have to decline by the virtue of the high responsibility bestowed upon me.”

Ouko says he takes issue with lawyers who claim courts are dripping with corruption.

“If a responsible lawyer sees a problem in the administration of justice, he or she should report it to the police. If they keep quiet or speak to the Press without dropping names, it is like they are encouraging injustice,” Ouko says.

Lawyer and MP, Paul Muite, had commented in the Press, “If you want a case decided in your favour, you buy justice from the judge or the magistrate.” He added that corrupt members of the bench were promoted while their more honest counterparts stagnated.

Ouko says he takes great exception to this claim saying, “Muite is in this court for 24 hours. If he does not believe in it, why does he come here?”

But another MP and lawyer, Mirugi Kariuki, argues, “Some advocates buy justice from the bench.”

Kariuki, however, believes the rule of law can be re-established in Kenya. “We should not give up going to court just because cases are pre-determined,” he says. “Evil thrives when good people choose to do nothing.” He suggests that the bench and the bar should not view each other as adversaries but as members of one team.

Kariuki and Kinuthia call for a change in the system of appointing members of the bench.

“The current system of appointing judges is not conducive to getting independent-minded and assertive characters. Many judges have no integrity and are in office due to political patronage. It is easy for such judges to be manipulated by those who appointed them,” Kinuthia says.

The Judicial Service Commission, says Kariuki, should be broadened to include players like the clergy, LSK, and the public. “This is the only way to ensure only people of integrity are appointed to high office in the judiciary,” Kariuki says. He adds that Kenya should consider adopting the English style of circuit courts to ensure that members of the bench do not stay in one station for more than three years.

“Perhaps this will restore the diminishing faith of Kenyans in the judiciary as it will put an end to the sad scenario in which justice appears to be at the whim of the bench and an accused person’s fate depends on how much one can bribe,” Kariuki proposes.

Kariuki suggests that the government sets up a legal aid scheme from which poor people can draw funds with which to hire lawyers. “As things stand, justice appears to be availed only to those with money with which to hire lawyers and bribe the bench,” he says.

Kariuki appeals to fellow lawyers to contribute at least 10% of their practice to free legal service to the poor.

Kitonga, the chairman of East Africa Law Society, calls for an Inspector-General of Courts to receive information on corruption in confidence to ensure transparency and accountability in the dispensation of justice in Kenya.

Human rights lawyer-cum politician, Muite, lamented some time back that justice is on sale in Kenya. He alleged that the entire judiciary had come to accept corruption as being normal and further claimed that other than for three judges in the Court of Appeal, two in the High Court and a few magistrates,”most of the others are absolutely corrupt. They have no business being in the courts.”

The outspoken Muite concluded, “We have no judiciary whatsoever in Kenya today.”

Neither the Government nor the Judicial Service Commission responded to Muite’s assertions thus appearing to give them credence.

From our interviews across tthe breadth and width of Kenya, it appears, little has changed in Kenya’s justice system over the past eight years. And the envisaged overhaul of the Judiciary could not be coming at a better time.