CJs offered toothless pledges to fight graft

In an unusual reaction to the criticism of the judiciary at the end of last year, Chief Justice David Maraga said that these articles "tarnishing the image of the judiciary" were funded by powerful individuals who had lost business in court and were leading a smear campaign.

Speaking in Nyando on November 22, where he had gone to unveil a court building, the president of the Supreme Court condemned the growing number of allegations of corruption, claiming that detractors judged "unfairly" the judiciary.

In fact, no one has denounced corruption in the justice system more than Chief Justice Maraga and his predecessor Dr. Willy Mutunga.

However, Dr. Mutunga had begun his term by treating corruption in the justice system as a secondary problem.

Perhaps because a radical operation had taken place about eight years earlier.

He entered as Chief Justice under the new constitution and a selection process for all judges and magistrates was already under way. Dr. Mutunga did not see corruption as a permanent challenge.

In its reform project launched on 31 May 2012 entitled Framework for the Transformation of the Judiciary 2012-2016Dr. Mutunga treated the judicial corruption quite cavalierly in light of the notoriety she had gained at the time of her rise.

Instead, he blamed the state of the judiciary for "overwhelming executive power," which he said had created "an institution plagued by corruption and inefficiency."

In the subtitled plan Laying the foundation for the transformation of the Kenyan justice systemthe eradication of corruption was not one of the seven goals of transformation.

Nor was it one of the four pillars in which the transformation framework was anchored, nor was it one of the 10 key result areas on which it needed to be badessed.

The elimination of corruption was only the strategic objective of the second pillar, entitled "Transformative Leadership, Organizational Culture and Professionally Motivated Staff", under Key Result Area 4 "Philosophy and Culture".

According to Dr. Mutunga, the strategic goal was to "promote and strengthen good governance in the justice system" and the goal was "to strengthen processes in the justice system and the justice sector in order to Eliminate corruption and unethical practices ".

The key action / initiative, he said, would be "to conduct corruption mapping exercises in the judiciary and judiciary, to develop a judicial corruption prevention strategy, to implement place integrity badurance mechanisms … and to enforce the law by the judiciary. principles of governance set out in the constitution as well as in the law on the ethics of public officers ".

In total, the word "corruption" is only used seven times in the transformation plan.

As it was developing its strategies, Parliament had, in accordance with the Constitution, enacted legislation establishing mechanisms and procedures to control all judges and magistrates.

The Selection of Judges and Magistrates Act came into force on March 22, 2011, and instituted a council that the Chief Justice swore in a few months later.

Yet the eradication of corruption was not high on the agenda of the transformation of the judiciary.

One year after launching his transformation program, Dr. Mutunga had a rude awakening.

In August 2013, members of the Judicial Service Commission (JSC) made spectacular allegations against the Chief Registrar regarding the waste of 2 billion shillings from the Justice Fund.

The allegations provoked a public quarrel between the chief clerk and JSC, during which allegations of corruption were exchanged.

Although this came to an end after JSC's dismissal by the chief clerk, it became clear that Dr. Mutunga had made a fatal mistake in treating corruption so casually in his plan.

Subsequently, on August 3, 2015, Dr. Mutunga openly admitted that the corruption was coming to the surface and that another radical surgery was required.

Revealing that the JSC was troubled by the high number of corruption complaints filed against judges and magistrates, Dr. Mutunga said:

"If we continue to hide and protect mired colleagues in this vice, we allow them to target everyone. if we continue to engage in this immoral sport, then I can badure you that the audit will be back and this time in a more vicious form than the previous one. "

Three months later, he again decried the level of corruption in the judicial system. "Corruption is death in society. We have raised our fight against corruption in the judiciary and the JSC will not hesitate to take disciplinary action against the judicial officers and administrative staff involved in this service, "said Dr. Mutunga. the inauguration of 21 new Kadhis.

He added that JSC would take action against convicted judges because "we want a judiciary that can not be accused of corruption".

A month later, in December 2015, his critics became even more severe. Interview with Mr Koert Lindijer of NRC HandelgradDr. Mutunga, a Dutch newspaper, said Kenya was ruled by mafia cartels that frustrated the war on corruption.

"You are taking these people into a corrupt investigation system, through a corrupt anti-corruption system and a corrupt judiciary," he lamented.

By the time Judge Maraga succeeded him, Dr. Mutunga had made it clear that the judiciary was more corrupt than during the first radical surgery.

Judge Maraga took it seriously and in the first two years of his mandate, the eradication of corruption was at the center of his transformation agenda.

During his swearing-in on October 19, 2016, Chief Justice Maraga said, "Corruption is a dark spot on the justice system. Corruption is on the rise. I will fight corruption as part of a new culture of the judiciary. "

Two days later, he again revealed his position on corruption in the judicial system.

Addressing senior judges at the end of a four-day workshop in Naivasha, Judge Maraga said that 10% of judges and magistrates were corrupt and that he would eliminate them.

Declaring that corruption in the justice system had become a major obstacle to the delivery of justice, he said that he would strengthen the Office of the Ombudsman so that he could investigate corrupt judges and magistrates, the result being communicated to the JSC.

"We will take decisive action against any convicted judge," he said.

Three months later, on January 25, 2017, Judge Maraga launched his transformation plan, Supporting the Transformation of the Judiciary (SJT) – A 2017-2021 Service Delivery Program.

In this document, the Chief Justice devoted an entire chapter to the eradication of corruption: "Integrity, fight against corruption and reorganization of the mechanism for handling complaints by the judiciary".

The chapter is an honest and comprehensive badysis of corruption in the justice system.

Under the title Forms of corruption in the judiciary, the document lists, among other forms of corruption, "postponement of business, delay in judicial proceedings, inconsistency in issuing bond / bond …"

The Chief Justice adds: "Other forms of corruption include: the delay of the trial, the delay in the delivery of judgments … the unexplained postponement of the facts; frank and unmotivated interpretations of the law or judgments, badignment of preferential hearing dates to particular subjects without proper explanation, ex parte and sometimes definitive orders without respect for fundamental legal principles … "

What is interesting about these practices that Mr. Maraga has declared to be forms of corruption is that they are the tools truly used by corrupt judges and magistrates to help those trapped in the justice system. criminal law on corruption.

His solutions were also radical. He stated that he "would strengthen information and investigations of corruption by strengthening reporting mechanisms, by restructuring the Office of the Judicial Ombudsman to receive and address complaints of maladministration, transparency and corroboration". effective with investigative agencies such as the Criminal Investigations Branch and the bank fraud investigations. and EACC ".

"There will also be integrity tests on employees in specific areas of interest, in conjunction with EACC, the establishment of a peer review mechanism and the designation and shame of judges, officers and staff members involved in unethical acts and employee mobilization. Key actors in the justice system such as the Law Society of Kenya, the Directorate of Public Prosecutions, the police, prisons, the probation department and the public must be involved in the fight against corruption in the justice system. "

As recently as August 20, Chief Justice Maraga was still open about corruption in the justice system.

At the opening of the 2018 Annual Magistrates' Symposium in Mombasa, Mr. Maraga revealed that he had begun talks with the National Police Service to join the Ombudsman's office in create a new investigative body within the justice system to deal with corrupt staff.

"Corruption exists in all sectors of our society. In the judicial system that I head, there are still many reports of corruption despite concerted efforts to address the vice of the institution, "he said.

But three months later, Mr. Maraga defended the judges of corruption charges.

What's changed? Why is Chief Justice Maraga suddenly so defensive?

Why would Dr. Mutunga and Mr. Maraga admit so openly that corruption is rampant in the justice system without doing absolutely anything?

We will discuss it next Sunday. Have a good week.

Paul Mwangi is a lawyer with the Kenya High Court and legal advisor to former Prime Minister Raila Odinga.