Suspicion followed every move Gicheru made to improve the bench, but he has made good progress
As early as when Justice Aaron Ringera presented his Judiciary graft report to Chief Justice Evan Gicheru, it was clear to anyone with knowledge of the Kenyan Judiciary then that all was not well. Doubts were being cast over the integrity of the Ringera report.
On the one hand, there were several notorious judicial officers who did not make it to the list. And lawyers were asking “how comes so and so is not there?” On the other hand, there were names on Justice Ringera’s list that seemed to have been included on flimsy grounds. Some were an outright shocker to the profession. Word going round in the legal fraternity is that Chief Justice Gicheru had great suspicions about making recommendations for the establishment of tribunals for some of the judges, but political pressure was too high.
Newly appointed and coming to head the Judiciary at a time when the spotlight was on the war against corruption, the CJ was unable to resist the demands of the then Justice minister Kiraitu Murungi on the establishment of tribunals for judges mentioned.
The number of courts built and refurbished under the CJ’s watch
But then the Justice Ringera report had unfortunate consequences. The worst was that is instilled fear in many a good judicial officer. Those who had remained upright and honest were disheartened to see some of their brothers “lynched” on shaky grounds. They felt that honesty was not protection enough a strong political tide could sweep them along with the corrupt ones.
Justice Ringera’s report also brought in a new type of politics in the Kenya Judiciary. Some insist that one of the purposes of “radical surgery” was to create a Judiciary that was in philosophical parity with the new regime. And nothing gave more credence to these opinions than some of the new appointments made to the Judiciary after the purge.
With these options on politics gaining sway, a question still lingering in the mind of many a judicial officer today is whether the not change of government will come with another “radical surgery” aimed at creating a Judiciary for the next regime.
Another unfortunate consequence of diary page that it undermined the authority at the new Chief Justice. Caught in between Justice Ringera’s report and the political manoeuvers of Mr. Murungi, Chief Justice Gicheru was unable to assert his authority over the Judiciary. He emerged from the purge and the subsequent appointments as weak and controlled.
The Chief Justice thus lost a great opportunity to lay down the rules for the new Judiciary. Some judges looked at him suspiciously and openly questioned the decisions he made. Contradictions in decisions arose with judges issuing conflicting decisions on the same legal issues. Every move the CJ made to strengthen the Judiciary elicited suspicion from many quarters. In all this confusion, it has been difficult to appreciate the reforms that the Judiciary has implemented over the last five years. And there are a number of things to criticise about the reign of Chief Justice Gicheru, beginning with the fact that he is too slow and not radical in his approach towards reforms.
But in his own cautious and “soft” approach, the Chief Justice has implemented some of the necessary reforms that the Judiciary has been crying out for over the years. One of the most commendable is the law reporting, which is now available freely on the internet. Previously, law reports were so rare and hard to find that law clerks in the Judiciary made a fortune compiling them and selling them to advocates.
The Chief Justice has also made a lot of progress in developing the infrastructural capacity of the courts Over 30 courts have been refurbished and built, the highlight being the new High Court at the old income tax building. Though it has taken too long to complete, it will increase the capacity of judges to dispense cases faster.
The new High Court will also complement the expected new appointment of judges Last year, the law was amended to raise the number of High Court judges from 50 to 70 and Court of Appeal judges from 11 to 14.
More recently, the Judiciary has set up a training institute as an internal training college for judges, magistrates, court clerks and other paralegals. Previously. there have been complaints, particularly against magistrates, that they do not keep themselves abreast with developments in law.
A last development worth mentioning on the infrastructural front is the implementation of digital audio recording of court proceedings. The most consuming part of courtroom trials is the recording of proceedings by long hand. When advocates and witnesses have to talk at the speed at which judicial officers write, then trials that can be finalised in one day can take a week to complete.
The Chief Justice can also be commended for reforms on three other fronts. On strategic thinking, the Judiciary launched its first strategic plan in 2005 to cover the period 200502008. It is expected that it will launch another strategic plan next year.
On self-review, the CJ followed the good tradition set by Chief Justice Bernard Chunga who had appointed the Kwach review team. Since then, the new Chief Justice has appointed three review teams under Justice Ringera in 2003, Onyango Otieno in 2005 and Kihara Kariuki in 2007.
Lastly, on performance review, the Judiciary under Chief Justice Gicheru has implemented a judicial performance review system. Under this system, each judicial officer and court submits a monthly report of the amount of work they have completed.
A matter that can be set aside for special mention is the continued effort of this Judiciary to be an independent institution. Over the years, the Judiciary has been accused of serving the whims of the Executive. The rulings and judgments of the Judiciary over the last five years show a more courageous institution.
Only last year, we witnessed the conflict between Chief Justice Gicheru and Justice minister Martha Karua over political interference in the appointment of judges. Unfortunately, the Chief Justice lost the battle – we pray be wins the war.
As a comic of the Kenyan Judiciary, I believe that this is the time to acknowledge how far our Judiciary has come. In the last five years, we have had some necessary and good reforms and we would lose the moral authority to criticise if we do not have the decency to compliment. We must tell our Chief Justice and his judicial officers that we acknowledge and appreciate the reforms they have been implementing.
That is not to say that we have nothing to complain about. For one, the Judiciary remains a closed-up institution that is a plus of lawyers, the media and the pub fir. For instance, the Judiciary do not freely provide critical information about itself and, to date, it is difficult to lay your hands on for instance, the Strategic Plan 2005-2008.
The best effort at opening up to the public is the annual Open Day of the Judiciary, but that is a far cry from the openness that the public requires of judicial operations. The procrastination of the CJ in implementing reform is also a matter of concern.
For example, the Justice Onyango Otieno sub-committee recommended some radical reforms to be implemented including the establishment of a Judge’s Complaints and Disciplinary Committee. To date, there is little development in implementing the subcommittee’s proposals.
Indeed, on the issue of disciplinary action against judicial offers the CJ has fared badly. Since the “radical surgery” in 2003, there has been no report of a judge or magistrate guilty of unethical conduct. And against those whom complaints have been forwarded by the legal profession, The CJ has done nothing. When he acts, it is by way of transferring the officer from his or her station.
In his report in 2003, Justice Ringera told the new Chief Justice that unethical conduct should be promptly and adequately sanctioned by dismissal or criminal prosecution and not by “a transfer or any other form of mollycoddling”.
This is the greatest challenge to our Chief Justice. He must take charge of the Judiciary and be more proactive in the reform drive.
And luckily for him, he has the support of the majority of judicial officers, who want to work in a respectable and fulfilling institution that affords them a good living and good reputation. The CJ must work with them to deliver such an institution and be ready to sacrifice those who will spoil it for the rest.
Lastly, the Chief Justice must now live to the words be uttered in October 2003:” Enough research has been done and all the problems affecting the administration of justice have been catalogued. Kenyans have waited long enough for those reforms, I will personally be reluctant to attend more workshops And seminars. It’s time for action.”