The Commonwealth judges who attracted the infamous retort “Experts on what, for what, about what?” from the infamous Chief Justice Bernard Chunga prescribed a short, sharp shock for the Judiciary. They wanted a catalystic trigger to changes in the attitudes of members of the Judiciary. Eventually, it was hoped, a change of attitudes would bring about institutional reforms to safeguard against a deterioration of standards.
The shock was eventually administered when 23 judges were suspended awaiting investigations into their conduct. It reverberated throughout the country and into the very heart of the Judiciary. This move has a precedent of sorts in England in 1289. Faced with complaints about corruption and ignorance of judges, King Edward I set up a commission of inquiry whose findings resulted in removing a huge number of judges and magistrates.
In our case, the shock was sharp. The paralysis that resulted in the court system was not just because half the personnel were out of work. Both sitting and suspended judges were filled with trepidation.
Obligations of judicial office
The point was driven home by Chief Justice Evan Gicheru when he asked the new judges to go and wind up their businesses before being posted to their stations. The suspensions have made us all rethink what the obligations of judicial office are. So far, the process has been short. Unfortunately, it is unlikely to remain that way. Neither of the tribunals has begun work. Only about four judges have resigned. The Law Society of Kenya’s report is still awaited and will come with even more damning revelations. It is expected that another five or more judges will be suspended.
We cannot afford to lengthen the processes. In the interests of the independence of the Judiciary, every process needed to clean it up must be hastened. The Commonwealth judges prescribed a short process because of the remnant damage a lengthy procedure would do to the Bench.
First, the spotlight is still on the Judiciary. The public knows there are quite a few corrupt judges and magistrates left in there, and the LSK has promised to flush them out. None of the judges who know there are enough grounds to investigate them is currently useful. They fear to start hearing any case lest they be caught up midway. We need to rush to the day when we can tell the judges that the investigations are over and they can go on with their business without fear. It is imperative that this operation be brought to a speedy conclusion.
Secondly, we have hired a new set of judges under extreme pressure. The President was sympathetic and comforted them by asking them to feel at ease and to do their jobs as best as they can. However, until the pressure is eased, none of the new judges will relax. It is difficult to sleep well with a bright light overhead. We must create circumstances for them to feel secure and proud to be members of our Judiciary. They must feel we have faith in them and that their reputations will not be weighed against their predecessors’ actions.
Thirdly, so long as this operation is still in force, this uncomfortable relationship between the Judiciary and the Executive will continue.
Recipe for disaster
The clean-up requires the Chief Justice to keep in close touch with the Ministry of Justice and the Attorney-General’s office. Both are political offices belonging to the Executive. It is always a recipe for disaster when these two branches start understanding one another. They must never be friends and we should feel uncomfortable when they relate for too long – they may grow to like each other.
In the present case, we have allowed the Executive to involve itself in matters concerning the Judiciary because of the gravity of the crisis we faced. It was a necessary, though undesirable, route. We might now begin to believe the Executive always means well when it invades the Judiciary. But history tells us that it rarely does. We may not know how to react several years from today when the Executive cooks up a reason to interfere with judges who refuse to be subservient to its will.
In 1387, English King Richard II sought the Judiciary’s views on the legality of a parliamentary commission which had been set up with powers wider than his own. The Judiciary advised the King that the commission was invalid. All the judges who gave this advice were impeached and sentenced to death.
About 300 years later, when being sworn in, Chief Justice Montague was told that the fate of his predecessor, Sir Edward Coke (who had been dismissed for giving an opinion contrary to the King’s wishes), was to be a lesson “to be learned of all, and to be remembered and feared of all that sit in judicial places”.
No dissenting vote
In Kenya, in 1988, we removed the security of tenure for judges without a dissenting vote in Parliament. We were convinced to back the move because, as Attorney-General Matthew Guy Muli told the House, its effect would be to remove some provisions that had never been applied before.
Since no tribunal had ever been appointed to investigate a judge, the provisions served no useful purpose. It can happen again. And the only security against it is public understanding and support for the Judiciary. That is why Chief Justice Gicheru must now disengage himself and the Judiciary from the Executive. He must ask the Government to speed up the investigations and trials of the suspended judges.
By Jamhuri Day, we must be through with tile firing and hiring of judges and our Chief Justice must be isolated from any further discourse with the Executive. In his book Commentaries on the Laws of England, Sir William Blackstone says: “Nothing is more to be avoided in a free constitution than uniting the provinces of a judge and a minister of state.”
We, Kenyans, are ultimately the ones responsible for the protection of our liberties. And that protection lies in our constantly requiring that all power be exercised within the confines of the law and the tenets of democracy.
We stand to lose our rights should we fail to be continuously suspicious and entrust our fate in the hands of men. Remember: Power corrupts, and absolute power corrupts absolutely.
Mr. Mwangi is an advocate practising in Nairobi