Judiciary needs bottom-up reform

About corruption and integrity, a certain hierarchy of extenuating scenarios must be acknowledged as implicit; all sins are not equal. The gradations of possible mitigation may go according to a typology depending on the relative situation of affected parties and their degree of culpable agency.

A private citizen is typically out of order whenever he plies a public official with illegal benefits in the form of money or money's worth, with a view to receiving some advantage or other.

The same citizen is understood to be a hapless victim if a public officer withholds a service or threatens to abuse official authority to the citizen's detriment unless wanjiku offers them a benefit in the form of money or money’s worth.

Standard accounts of culpability for corruption ignore the nuanced implications for the great run of cases, which situate the public servant in a bribery prone environment and a matatu operator in identical predicaments.

For the matatu, constant exposure to forceful demands for bribes make corruption a simple matter of operational prudence; because the rigours of due process are simply onerous for those inclined to take the high road and vindicate themselves.

Unsurprisingly, the efficient course of action for the matatu is not conformity with the imperatives of the Highway Code, traffic safety or prudent motoring, but with the nefarious demands of corrupt traffic department officers.

Such are the complicated implications of chronically corrupt environments that an efficiency argument exists in extenuation of everyday corruption: that it greases the wheels of bureaucracy and makes doing business easier.

Certain public officers, however, may not have to be venal extortionists, like the boys in blue. Wherever stakes are substantial, especially in an adversarial contest, the direction of bribe initiation inverts. Judicial officers fall in this category.

Whilst many of them openly expect or even demand bribes outright, others are presented with escalating series of inducements until, unfortunately, their tolerance threshold exceeds elastic limits, and a bribe is accepted.

It may be argued then, that many judicial officers endure frequent exposure to attractive inducements over long durations and many ultimately succumb.

Even as this capitulation is unfortunate and reprehensible, we must remain attentive of the distinction from those who actively solicit bribes and even market their illegal ministrations, and if we agree that such a distinction matters, it should not be difficult to acknowledge the absolute ethical predominance of those who never succumb to such determined temptation.

Scripture does make this point, using the inspiring account of Joseph and his travails in Egypt, especially in the face of salacious blandishments from Potiphar's wife.

A fortnight ago, the Judicial Service Commission published a memorandum announcing that after conducting interviews, it had approved the promotion of 24 senior principal magistrates to be Chief Magistrates, the highest rank of the subordinate courts, with significant jurisdictional reach. It also created and filled the position of registrar, automation services.

As it happens, I am acquainted with a number of these officers from diverse encounters in a former life, and know, as well as can be ascertained, that they are conscientious, hard working professionals who entered the magistracy with the firm determination to build a successful judicial career along this longer, harder pathway.

The Judiciary is highly attractive to many a lawyer whose practice struggles, or see judicial authority as an instrument of personal material advancement, or are irresistibly drawn, like a moth to a flame, by the intoxicating panoply of office, or are hopelessly unable to function without the security of tenure and other amenities conferred by public office.

Judicial corruption is, to a large extent, driven by perverse officers who leverage public office in the pursuit of corrupt competition with their successful counterparts in lucrative private practice. In some instances, perverse elements from each side coordinate to subvert the court process and rule of law for their mutual perfidious gain.

It is therefore easier for syndicates of venality to sponsor an ally from legal practice to enter the senior ranks of judicial service, and much more difficult for them to patiently cultivate an entry-level magistrate until they attain sufficient jurisdiction to be useful.

It takes only one vetting event for a lawyer to transition from the streets into high judicial office. On the other hand, it takes at least six additional interviews for a magistrate to ascend to the level of chief magistrate, creating more opportunities to receive complaints and otherwise detect and cull out incompetence and turpitude.

The list published by the JSC recognises the few who, through decades of herculean endeavour in the thankless pit of public service, have managed to resist the siren call of flagitiousness and focused only on serving the people.

It also signals a new dawn for judicial integrity and affirms the proposition that the best way to achieve and maintain judicial integrity is through a bottom-up capacity development, which is inherently meritocratic, and rigorous, in lieu of a process that is notoriously replete with incentives for sundry opportunities and megalomaniacs.

Mr Ngéno is an Advocate of the High Court