In my opinion published in the Sunday Nation of February 10 (‘Lawyers too have a case to answer’), I made the following statement: “It is a great shame on us advocates that we have had two representatives at the JSC (Judicial Service Commission) for the past eight years yet the commission stands indicted as bearing the greatest responsibility for the unprecedented levels of corruption and impunity in the Judiciary today.”
It is clear that I was not alone in this concern and that many members of the legal profession have been mourning the deteriorating ethical standards that have become the common practice in our profession.
A critical look at the recently concluded elections for the male representative of the Law Society of Kenya in the Judicial Service Commission shows that Kenya’s lawyers have once again, at a critical period in this country’s development, taken the high moral ground and decided to lead the way towards a society that is governed by the rule of law.
The best way to understand how lawyers made this decision is to look at why the new representative, Mr. Macharia Njeru, was elected and why the ex-Commissioner, Prof Tom Ojienda, lost.
Though Mr. Njeru is an old hand in the legal profession, he is known mostly to the senior members of the bar. Unlike Prof Ojienda, he is not a household name, so to speak. Such public reputation is achieved mostly by litigation lawyers handling high flying political cases, which Mr. Njeru does not. Further,his tenure at the Independent Police Oversight Authority, which was the main credential he had to offer to members of LSK, was rarely a matter of public notoriety. But Mr. Njeru understood what lawyers wanted in this election. He listened to the concerns of the majority of the members of the LSK.
For instance, members had become increasingly concerned about the suspected abuse of office that their previous representatives at the JSC were accused of engaging in. Mr. Njeru understood the depth of emotion the issue had generated among members and categorically undertook to never appear as a lawyer before any judge during his tenure as a commissioner.
Prof Ojienda treated this largely as a non-issue and failed to take time to defend himself and disabuse the members of such fears. For him and his predecessor at the JSC, Ahmednasir Abdullahi, who was a supporter of his candidature, this was an issue they should both have discussed with the voting members.
Mr. Njeru also centered his campaign on corruption of judges and magistrates. He addressed the issue of cartels in the profession.
He promised members that he would make the war against corruption as his main mission at the commission. On his part,Prof Ojienda downplayed this issue,too. He equally underestimated the depth of emotions on the issue of corruption at the bench. In the opinion published in the Sunday Nation of January 6, 2019, under the title ‘How Judiciary is standing in the way of Justice’, I captured this emotion in the following words: “…we are getting exasperated that the Judiciary is refusing to take responsibility for its failures… We demand to be taken more seriously. We demand to have our aspirations respected. And it is our aspiration to live in a corruption-free society. And we demand that all our institutions, the Judiciary included, become active participants in the effort.”
Instead, Prof Ojienda centered his campaigns on the issue of independence of the Judiciary from the Executive. This has always been an issue in the politics of the Kenya Judiciary but not this time. The issue with the Judiciary this time was regarding its independence from improper private influences.
Indeed,these influences have penetrated the election of the lawyers’ representative to the JSC itself. In my opinion titled ‘Judicial Service Commission is the real culprit in the decline of the Judiciary’(Sunday Nation February 3,2019),I stated:“The issue of independence from improper private influences is one no one in the Kenyan Judiciary wants to discuss… The reason of course is because the Judiciary has been captured by these improper private influences both within and without the Judiciary. So powerful are these influences, and so lucrative is a seat at the JSC, that in the 2015 JSC elections, millions of shillings were spent in the campaigns for representative of judges, magistrates and advocates. Yet the position is a part-time engagement for which members only earn a sitting allowance.”
But apart from the fact that interference from private interests is today a greater threat, it is also a fact that the Executive has become the boogeyman of corrupt judges and lawyers. It is today an acclaimed best practice when fighting to escape accountability for one’s actions as a judge or a lawyer to simply say that the government is after you and to publish a run-of-the mill narrative to support the lamentation. The majority of the lawyers don’t buy these narratives anymore. Members have become critical and cynical.
Prof Ojienda’s campaign was, therefore, unable to achieve the automatic reaction that an anti-Executive campaign often gets from a community of lawyers. The majority of the members were clear about what the issue of the day was. And it was the integrity of lawyers and judicial officers.
One fact that could have worked against Mr. Njeru’s candidature was his ethnicity. By his election, Mr. Njeru’s position put the number of persons from the same ethnic group in the commission to five in a group of 11 members. This was, in fact, an issue that was raised very loudly by Team Ojienda. That members ignored this fact and decided that it was not going to deflect attention from the ethical issue surrounding the election of their representative to the JSC is a clear indication that Kenya’s lawyers view integrity as the single most important issue in the country’s leadership.
Lawyers also ignore the millions of shillings that were splashed on members,with the Ojienda campaign regarded as the most generous in its expenditure. One of the candidates in the election, Mr. Charles Ongoto, lamented about the levels of spending by his rivals saying it was unbelievable. “It is the most expensive election I have ever seen”, he was quoted by the Daily Nation as saying.
The Ojienda campaign was also accused of having in its midst an arrogant and disrespectful coterie of young lawyers who were so loud that it was believed that all young lawyers were rebelling against the profession and supporting Prof Ojienda.
It is now clear that was not true. Young lawyers care about their profession as much as the more senior lawyers and also wish to protect the noble virtues on which their profession is founded.