Resistance by corrupt judges to quit notice futile

It feels like the eve of something phenomenal, potent with anxious excitement of a medical procedure. The judiciary is about to go to the operation theatre for the removal of a malignant tumour that has been giving the whole country a headache. The tumour has been located, the head shaved and the judiciary put on the stretcher. The patient, however, is refusing to succumb to the anesthesia.

The operation however, must go on, even if it takes knocking the patient on the head to make him unconscious. For two decades, this country has suffered the painful disruption of a migraine. Diagnosis after diagnosis has been done. First the judges were political appointees who owed their lives to their master, a deceitful selfish dictator. The cure was to force their master to take the medicine by being accountable to the people in judicial appointments. But the judiciary was an integral part of a ruthless corrupt political system on which their master thrived.

Eventually their master was forced to take the medication, but it was too late. Further diagnosis showed that the cancer had eaten up the executive and gone to the judiciary. So the executive was amputated from the body politic and transplantation carried out. The draft constitution had recommended the amputation and transplantation of the judiciary too but the consulting doctor, Kiraitu Murungi, has suggested a faster but more delicate procedure, a surgical one.

The latest diagnosis of the malady in the judiciary is contained in a report of Justice Aaron Ringera. The report was commissioned by the new Chief Justice, Mr. Evans Gicheru, when he set up an Integrity and Anti-Corruption Committee to investigate complaints against members of the judiciary.

According to Justice Ringera, half of all Kenyan judges are corrupt. Five of these sit as Court of Appeal judges while twenty-three are puisne judges (the technical word for High Court judges). The condemnation was so grave that while handing over the report, the judge used poetic language to describe the challenge ahead for the Chief Justice. “We are apprehensive that in handing over the report, we are handing over to you a dragon. It is bound to snort, jump, kick and even attack for corruption always fights back. That notwithstanding, you have no option but to seize it by the horns and slay it”.

Since then, several judges have made it clear that they will not resign. They say it is unfair to be asked to leave without first being fully informed of the charges against them. Others have indicated they shall go to court. Politicians who are sympathetic to the judges have demanded that all the judges resign and the re-appointments will be made. But all these are but the last kicks of a dying horse.

If a judge is sure that he has a clean record, that he is above suspicion, why would he or she worry?

The same case applies for those who want to go to court (the pun in which does sound sinister). There cannot be any law that can protect a judge who admits to his corrupt practices, the existence of which is his locus stands. Neither can there be a court that can uphold such a law. But such is the nature of our judiciary, that it is not inconceivable that the litigant judge will obtain an order barring his removal.

The statistics however, make such a move foolhardy. According to the Ringera report, one chance out of two is that the judge who issues the order is himself mentioned in the report. There is a 50 per cent chance that he has such a conflict of interest that he cannot sit I judgment. He would be a judge in his own course. Any order he was to issue would not have any oral authority and would invariably be disobeyed.

Then there are politicians pleading the case for the judges. The most apparent character I them is their political persuasions; they are all Kanu members. Being their party that appointed mist of these judges, their concern is understandable. But their solution is suspect. Why would they want all judges to resign? My theory is that by all judges resigning, the real culprits are covered up and all those ill-gotten judgments are secured. Secondly, when re-appointments are done, those left out will claim everything from ethnicity to political persuasion as the real reason for their being shunned. Justice Oguk is already claiming that he was lynched by a “Mt. Kenya” bench which refused to give him an order of prohibition against his prosecution.

But nothing will stop the surgery. The patient will be wheeled in, punching and kicking, into the theatre. The operation will be done. At the end of it, only the tumour will be wriggling in feigned indignation as it is removed and thrown into the incinerator. The patient will live in spite of himself, and gladly, so shall we all.