In Summary
  • Few countries in the world have failed as spectacularly as Kenya in reforming their judiciary. We have tried everything. We have failed every time.
  • We have instead been saddled with a judiciary that is rotten to the core, stinking to the high heavens, byzantine and barbaric.
  • Every time we think we have discovered a cure for corruption, it mutates into a more virulent and malignant form that stakes a bigger claim in our courts.
  • Unless we provide a holistic cure for the many ailments that afflicts the Kenyan society, we will have a very sick judiciary.
  • Corruption in our judiciary is both stealth and grand. It is mostly an under the table affair.

Last August, I was invited by Justice (Prof) Joel Ngugi of the Judicial Training institute to address Kenyan judges during their annual colloquium in Mombasa.

I presented a 21-page paper titled “The Limits of Prescriptive Reforms: The Struggle and Challenges of Judicial Reforms in Kenya, 2002 to 2010”.

On the eve of my presentation, a number of judges having heard rumours as to the tenor and purport of my paper, moved a motion that I should be disinvited and barred from presenting the scheduled paper.

The more sensible judges were dismayed by the attempt to disinvite me, and a quick straw ballot conducted saved the day.

But such is the deficit in the democratic credentials of our judges and their insular attitude to audit and interrogation!

The central thesis of the paper was simple. No country in the world has invested more time and resources and tried as hard as Kenya to reform its judiciary.

WE FAIL EVERY TIME

Few countries in the world have failed as spectacularly as Kenya in reforming their judiciary. We have tried everything. We have failed every time.

We tried the Radical surgery of 2003 when we summarily dismissed fifty percent of our judges.

We tried the vetting of judges and magistrates in which we forced all judicial officers to reapply for their jobs.

We adopted a progressive constitution that freed the judiciary from executive shackles.

We are the only country in the world where the president has little say in the appointment of the Chief Justice.

We established a powerful Judicial Service Commission that appoints all cadres of judicial officers.

Yet, the Kenyan people have not been rewarded with an efficient, competent and corruption free judiciary.

We have instead been saddled with a judiciary that is rotten to the core, stinking to the high heavens, byzantine and barbaric.

Every time we think we have discovered a cure for corruption, it mutates into a more virulent and malignant form that stakes a bigger claim in our courts.

CORRUPTION

So what is the problem? Simple. We are trying to cure a societal malaise with a heavy dose of constitutional and statutory prescription.

It is not working. It won’t work. A sick society seers a sick judiciary. You cannot cure the judiciary in isolation of the larger society.

Unless we provide a holistic cure for the many ailments that afflicts the Kenyan society, we will have a very sick judiciary.

Corruption in our judiciary is both stealth and grand. It is mostly an under the table affair.

Occasionally when someone fails to keep his bargain, the aggrieved party spills the beans.

JUSTICE TUNOI SAGA

The sordid details of the bribery scandal that has engulfed and consumed Justice Philip Tunoi of the Supreme Court ought to be seen in that light.

The Tunoi scandal however brings to the fore a number of fundamental issues that should be appreciated in the context of judicial reforms.

First, it is the most glaring evidence that the Supreme Court just like other court in the country is not immune from corrupt practices.

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