CORRUPTION-KENYA: A Hard Nut to Crack

By IPS Correspondents Reprint | | Print |

Joyce Mulama

NAIROBI, Apr 16 2005 (IPS) - As the government of Kenya is fighting to clear its name from allegations of corruption, its efforts are being undermined by renewed claims of graft in the judiciary. President Mwai Kibaki’s administration had shaken up the judiciary in an attempt to clean up the system.

It has not succeeded.

In its Apr. 7 report, the Geneva-based International Commission of Jurists (ICJ) said the corruption within the judiciary has continued to remain a serious impediment to the rule of law in Kenya.

The report followed a fact-finding mission to Kenya in December 2004 by the ICJ on the independence and transparency of the judiciary.

‘’We went around collecting views and the evidence we received was overwhelming that corruption was still taking place but in a very secretive manner because the judicial officers are afraid of the radical surgery,” said George Kanyeihamba, the head of the mission.

The radical surgery involved the suspension of five out of nine Court of Appeal Justices, 18 out of 36 judges and 82 out of 254 magistrates implicated in corruption. Their dismissal followed the release of a report by the government-appointed Integrity and Anti-Corruption Committee of the Judiciary in Kenya in 2003. The names of the alleged corrupt judicial officers were published in the media.

According to the report, high court judges were passing favourable ruling after receiving bribes ranging from about 641 dollars to 20,000 dollars depending on the complexity of the case. Sexual favours also formed part of the package. Magistrates received bribes ranging from about 51 dollars to 1,920 dollars.

A two-week ultimatum was subsequently issued to the impugned judges and magistrates to either resign or face dismissal. Many resigned and some have since mounted legal challenges against their dismissals. Only one of the cases presented to tribunals set up to investigate the allegations has been resolved, with the acquittal of a court of appeal justice late last year.

President Kibaki then appointed 28 acting High Court judges to replace the 18 who had either resigned or retired, raising concern about the criteria used to get them into office. The public has also expressed concern over the lack of transparency in the appointment process.

Even Chief Justice Evans Gicheru was reported by the media last week as saying that the executive was interfering with the judiciary’s work. He spoke at a three-day meeting, which brought together representatives of 19 commonwealth countries from around Africa, in Kenya’s capital Nairobi. The conference focused on accountability and relationship between the three arms of government: the executive, the judiciary and the legislature.

Kanyeihamba, who is also a member of the Supreme Court of Uganda, urged Kenya to guarantee the autonomy of the judiciary.

Kenya’s draft constitution has addressed the appointment of judges, which has been a controversial issue since president Kibaki appointed successors of the judges affected by the changes. Further protests followed the appointment by president of the current chief justice last year, which critics described as a political appointment.

ICJ report recommends that for purposes of transparency and professionalism, all appointments and promotions in the judiciary be based on academic qualifications, integrity, ability as well as experience. The positions should be advertised and nominations vetted by the public.

It appears the government has also realised that the current system perpetuates corruption within the judiciary.

‘’The process in place to recruit judges is inadequate and will only be remedied if the draft constitution is passed into law. There are no mechanisms to either remove or appoint judges to the bench. It is important that consultations are held about the nominations. It is also imperative that the consultations involve the public,” said Gichira Kibara, director of legal affairs in the ministry of justice and constitutional affairs.

Experts say transparency alone in recruiting judicial officers will not be enough to curb corruption in the judiciary. This, they say, must go hand-in-hand with increasing budgetary allocation for the judiciary.

‘’The low allocation of funds to the judiciary, which translates into poor salary packages means someone can be arm-twisted,” Philip Kichana, executive director of ICK-Kenya told IPS.

Currently, the judiciary consumes one percent of state budget, according to ICJ. This is not enough to meet the requirements for human resources and equipment necessary for judicial operations in the administration of justice.

Kenya’s budget stands at about 5.4 billion dollars, according to official statistics.