Why we must not target individuals in efforts to reform the Judiciary

Supreme Court in Nairobi. [File, Standard]

The assault on the Judiciary has until recently been a one person “terminator” style assault by Senior Counsel Ahmednassir Abdullahi, former President of the LSK and former member of the Judicial Service Commission.

I had the privilege of serving in the council when Ahmednassir was LSK chairman and I can confirm that “Bandit”, as we called him behind his back, is a formidable and tenacious one-man army. In the last couple of weeks, the war has attracted other compadres chief among them Brave New Bar Supremo, Nelson Havi.

While attacks from the duo are informed by the maladies in the Judiciary, their focus is Chief Justice Martha Koome, who they see as the entry point for any clean-up. There is no doubt that the Judiciary requires a shake-up.

Lethargy has become the norm. The number of matters not heard because judicial officers are unavailable is deplorable. The indolence virus is fast spreading, and even formerly hardworking judges are slowing down. It is increasingly more common to not be heard and for your judgement to be unreasonably delayed.

Basic applications, even those certified urgent, are placed on wait trays for months, sometimes years. And then there is graft, which the Judiciary’s protagonists allege is back with a bang. Anecdotal evidence appears to confirm the latter. I however generally mistrust stories about graft. In Kenya, allegations of graft are usually intended to achieve collateral purposes.

In truth, most people who engage in graft are so efficient, and serve their clientele so well, their actions never get public attention. That said, it would be helpful if those with evidence of improprieties would use available avenues to deal with specific officers rather than taint the entire institution.

My concern about the approach by our former LSK presidents is that in focusing on the person of the Chief Justice, their legitimate intentions to cure the Judiciary of its many ailments can be interpreted as also intended to achieve collateral objectives, chiefly the removal of the CJ, and not for the stated reasons. I say this for two reasons.

Firstly, if the issue is graft, one may accuse the CJ of many shortcomings, but in her long career in the Judiciary, she has never been associated with sleaze. One may challenge her on style and whether it is accomplishing the needed efficiency of the judicial processes, but that is a role played by a multiplicity of actors including the National Council for the Administration of Justice, the various Registrars and the JSC as an institution. It cannot surely be a reason for demanding resignation.

Secondly and more substantively, the challenges of judicial oversight are institutional. While the Constitution, in creating JSC intended to ensure an institutionalised process for dealing with any possible rot in the Judiciary, the way JSC is structured makes it incapable of being an effective “nyapara” of the institution.

The bulk of JSC members are judges elected by their members, and advocates, still in active legal practice.

The judicial officer members operate as trade unionists, looking out for their electorate and unlikely to go full throttle against the interests of same electorate. The lawyer members of JSC are a minority and also know there is a price to be paid for vigour against judicial officers. There are two members who “represent the public” but they are appointed by the Executive. Enough said.

A sustainable clean-up of the Judiciary should therefore focus, not on the Chief Justice, but on correcting this institutional dysfunction. My final concern is for all its ailments, the Judiciary still has a significant coterie of hardworking judicial officers and is currently the only institution that gives Kenyans hope that the Executive and Parliament can be checked.

Continual and generalised assaults on the Judiciary can lead to public despondency and eventually to civil strife. While demands for reforms are legitimate, they must be tempered with realism that changing Kenya is first and foremost about transforming institutions, then placing the right people in the reformed institutions.

The approach that focusses on individuals, especially where their alleged misdeeds are based on conjecture, may satisfy an angry public’s need for blood, but it eventually disappoints and does not lead to sustainable change.   

-The writer is an advocate of the High Court