Former Chief Justice Mutunga vowed to fight corruption in courts but failed. For Maraga, he has suddenly become defensive of judges


In an uncharacteristic reaction to criticism of the Judiciary late last year, Chief Justice David Maraga said those writing articles “to tarnish the image of the Judiciary” were being bankrolled by powerful individuals who had lost cases in court and were on a smear campaign.

Speaking in Nyando on November 22 last year, where he had gone to unveil a court building, the Chief Justice condemned the increasing corruption allegations, saying the critics are “un-
fairly” judging the Judiciary.

In actual fact, no one has blown the whistle on corruption in the Judiciary more than Chief Justice Maraga and his predecessor Dr. Willy Mutunga. However, Dr. Mutunga had started his tenure by treating corruption in the Judiciary as a peripheral issue. Possibly because a radical surgery had been conducted about eight years earlier.

He came in as the first Chief Justice under the new constitution, and a vetting process of all judges and magistrates was already underway, thus, Dr. Mutunga did not view corruption as a continuing challenge.

In his blueprint of reform launched on May 31, 2012 entitled “Judiciary Transformation Framework 2012-2016”, Dr. Mutunga had treated judicial corruption in a rather cavalier way in light of the prominence it had achieved at the time of his ascendancy. Instead, he blamed the state of the Judiciary largely on “overwhelming influences of the Executive” which he said had created “an institution plagued by corruption and inefficiency”.

In the blueprint sub-titled “Laying the foundations for the transformation of the Kenyan Judiciary”, eradication of corruption was not one of the seven goals of transformation. Neither was it one of the four pillars in which the transformation framework was anchored nor one of the 10 key result areas on which it was to be evaluated.

Eradication of corruption only got a place as a strategic objective of Pillar 2, which was entitled “Transformative leadership, organisational culture and professional motivated staff” under the Key Result Area 4 entitled “Philosophy and culturent”.

In it, Dr. Mutunga said that the strategic objective was “to promote and enhance good governance in the Judiciary” and the strategic objective would be to “strengthen processes in the
Judiciary, and across the justice sector, to eliminate corruption and unethical practices”.

The key action/initiative, he said, would be to “conduct corruption mapping exercises in the Judiciary and justice sector, develop a sector corruption prevention strategy championed by the
Judiciary, establish integrity assurance mechanisms … and enforce compliance in the Judiciary with the values and principles of governance in the constitution as well as the Public Officer Ethics Act”.

In total, the word “corruption” is only used seven times in the transformation blueprint.

In actual fact, no one has blown the whistle on corruption in the Judiciary more than Chief Justice Maraga and his predecessor Dr Willy Mutunga.”

As he was strategising, Parliament had, as required by the constitution, enacted legislation to establish mechanisms and procedures for vetting all judges and magistrates. The Vetting of
Judges and Magistrates Act had come into force on March 22, 2011, and established a board the Chief Justice swore into office a few months later.

Yet eradication of corruption was not high on the list in the blueprint to transform the Judiciary.

One year after launching his transformative agenda, Dr. Mutunga got a rude awakening. In August 2013, spectacular allegations were made by some members of the Judicial Service Commission (JSC) against the Chief Registrar concerning the squandering of Sh2 billion from the Judiciary Fund.

The allegations launched a public affray between the Chief Registrar and JSC during which claims of corruption were traded. Though this ended after JSC fired the chief registrar, it became clear Dr. Mutunga had made a fatal error by treating corruption in such a flippant manner in his blueprint. Subsequently, on August 3, 2015, Dr. Mutunga openly admitted that corruption was creeping back to the bench and another radical surgery was necessary.

Revealing that the JSC was disturbed by the high number of corruption-related complaints against judges and magistrates, Dr. Mutunga said: “If we continue to cover-up for and protect colleagues mired in this vice, and allow them to tar everybody else; if we continue to engage in this immoral sport, then I can assure you the vetting 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 Judiciary. “Corruption is death in society. We have elevated our fight against corruption in the Judiciary a notch higher and the JSC will not hesitate to take disciplinary action against judicial officers and administrative staff who are engaged in this vice,” Dr/ Mutunga said when he swore in 21 new Kadhis.
He said JSC would take action against judges found culpable because “we want a Judiciary that cannot be accused of corruption”.

One month later, in December 2015, his criticism became even harsher.  Talking to Mr Koert Lindijer of “NRC Handelgrad”, a Dutch newspaper, Dr. Mutunga said that Kenya was being run by mafia-style cartels that were frustrating the war against corruption. “You are taking these people into a corrupt investigating system, through a corrupt anti-corruption system and a corrupt Judiciary,” he lamented.

By the time Justice Maraga succeeded him, Dr. Mutunga had made it clear that the Judiciary was more corrupt than it was when the first radical surgery was carried out. This Justice Maraga took seriously and in the first two years of his tenure, eradication of corruption was at the centre of his transformative agenda.

During his swearing-in on October 19, 2016, Chief Justice Maraga said: “Corruption is a dark blot on the Judiciary. Corruption is on the rise. I will fight corruption as part of a new culture at the Judiciary.”

Two days later, he again revealed his position on corruption in the Judiciary. Addressing High Court judges at the end of a four-day workshop in Naivasha, Justice Maraga said that 10 per cent of judges and magistrates were corrupt and that he would weed them out.

Declaring that corruption in the Judiciary had become a major impediment to the delivery of justice, he said that he would strengthen the Office of the Ombudsman to investigate corrupt
judges and magistrates with the outcome handed to JSC.

“We shall take decisive action against any judge found guilty,” he said. Three months later, on January 25, 2017, Justice Maraga launched his transformation blueprint, “Sustaining
Judiciary Transformation (SJT)-A Service Delivery Agenda 2017-2021”. In it, the Chief Justice dedicated an entire chapter to the eradication of corruption: “Integrity, fighting against corruption & re-organisation of Judiciary complaints handling mechanism”.

The chapter is an honest and exhaustive analysis of corruption in the Judiciary. Under the heading “Forms of corruption in the Judiciary”, the document lists among other forms of corruption “adjournment of cases; delay in court processes; inconsistency in the issuance of bail/bond …”

The Chief Justice adds: “Other forms of corruption include: delay of the trial process; delay of the delivery of judgments … the unexplained adjournment of matters; outright and unreasoned interpretations of the law or judgments, the giving of particular matters preferential hearing dates without proper explanation, giving ex-parte and sometimes final orders without observing the basic legal tenets …”

The interesting thing about these practices that Mr. Maraga declared were forms of corruption is that they are the actual tools that corrupt judges and magistrates use to assist those people caught up by the criminal justice system on corruption matters.

His solutions were equally radical. He said he would “enhance corruption reporting and investigation by strengthening corruption reporting mechanisms, restructuring the office of the Judiciary Ombudsman to receive and process complaints of maladministration, transparency, and efficiently corroborating with investigative agencies such as the Directorate of Criminal
Investigations, Banking Fraud Investigations and EACC”.

He went on: “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 “naming and shaming” of judges, judicial officers and staff involved in unethical conduct and mobilisation of key stakeholders in the justice system such as the Law Society of Kenya, Directorate of Public Prosecutions, police, prisons, probation department and the public to participate in the fight against corruption in the Judiciary”.

As late as August 20 last year, Chief Justice Maraga was still open about corruption in the Judiciary. When opening the 2018 Judiciary Annual Judges’ Colloquium in Mombasa, Mr Maraga
disclosed that he had begun talks with the National Police Service to partner with the Ombudsman’s office to create a new investigative arm within the judiciary to deal with corrupt staff.

“Corruption is there in every sector of our society. In the Judiciary, which I head, reports of corruption remain high despite concerted efforts to address the vice in the institution,”
he said.

But three months later, Mr. Maraga was defending judges from accusations of corruption. What has changed? Why is Chief Justice Maraga so defensive all of a sudden? Why would both Dr. Mutunga and Mr. Maraga so openly admit that corruption is rife in the Judiciary yet do absolutely nothing beyond paying lip service? We shall discuss this next Sunday.

Have a great week.