“CORRUPTION IN THE JUDICIARY”

Presentation of The Honourable Mr. Justice (Rtd.) Aaron G. Ringera,

Director & Chief Executive of the Kenya Anti-Corruption Commission

Wednesday, 25th April 2007, The World Bank, Washington D.C.

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Mr Richard Messick, Senior Public Sector Specialist and Co-Director of

the Law and Justice Thematic Group, staff of the World Bank, Ladies

and Gentlemen;

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PART A: INTRODUCTION

I wish to begin by registering my personal appreciation, and that of the Kenya

Anti-Corruption Commission, for the invitation to attend and speak to you this

morning on the topic “Corruption in the Judiciary”. This is a subject that is not

only close to my heart, but is also an issue of major concern at the national and

international level.

Our topic of discussion today represents a confluence of three major rivers: the

Law, the concept of Justice, and the phenomenon of Corruption. Being

mindful that my presentation is slated for twenty-five minutes, and great as the

temptation may be, I will not launch into an academic discussion of the origins

and development of the Law as we know and understand it today. Nor will I

give the same treatment to Lady Justice. This is done very well not far from

here, at Georgetown University’s Faculty of Law.

However, as a lawyer, I find it irresistible to share with you some thoughts

about what others have said, and how others have viewed the profession of

lawyering, and the administration of Justice.

I will begin with the French diplomat, dramatist and novelist Jean Giraudoux,

who lived between 1882 and 1944, and who said, in Tiger at the Gates,

“There is n o be t ter way of exe rc is ing the imag ination than the s tudy of

law. No poe t ever in terpre ted nature as f re e l y as a lawyer in terpre ts

truth”.

William Shakespeare in Henry VI famously said

“The f irs t th ing we do, l e t ’ s ki l l al l the lawyers”.

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While I agree with William Shakespeare on many things, this is not one of

them! Indeed, it is not all doom and gloom for lawyers. To be fair to lawyers,

we merely practice the law as we find it when we are first called to join the Bar.

Indeed, Dr Samuel H. Johnson, in James Boswel, Tour of the Hebrides, observed

quite correctly that

“A lawyer has no bus iness with the jus t i c e or in jus t i c e of the cause

which he undertakes , unl ess his c l i en t asks his opin i on , and then he is

bound to g ive i t hones t l y . The jus t i c e or in jus t i c e of the cause is to be

dec ided by the judge”.

That neatly preserves the position of the lawyer – it is not his fault that the law

is the way it is. His is to worship at the altar Men and Women have constructed

called the Law, leaving it to others to best contemplate how best the Law can

be amended or even totally replaced.

What of Justice itself? Mr Justice Darling of the English High Court of Justice

once observed that

“The law courts of England are open to a l l men l ike the doors of the

Ritz Hote l”

The meaning, of course, is clear; you can access the law courts as easily as you

can afford to. The converse, of course, is sad, but true.

Finally, what is corruption? Various definitions, marked by great agreements

and disagreements, have been rendered over time. The bottom line, the

irreducible minimum, appears to be that corruption is the abuse of a position

of trust for private gain.

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Ladies and Gentlemen:

In my reading over time, I have found that the Social Contract theory is best

espoused by John Rawls in his masterpiece “A Theory of Justice”1. According to

Rawls, the social contract is not an abstract, non-existent formulation without

actual signatories as is demanded by the Law of Contract. Rather, the political

and economic principles appropriate to a modern democratic state are derived

from a hypothetical contract, that is to say, from reflection on the principles which

rational, moderately self-interested individuals facing an uncertain future would

have agreed to as the principles best suited to frame their political and

economic affairs if they had made that agreement under conditions which

prevented them from taking advantage of each other. Such an agreement would

yield a government constrained by constitutionalist principles about the rule of

law and individual civil rights, and an economic order devoted to the

achievement of social justice.

In my humble opinion, John Rawls’ rendition of the Social Contract Theory

best encapsulates the confluence of the Law, Justice and Corruption. In my

understanding, corruption is the brazen subversion of the Social Contract

Theory. Corruption

- undermines the foundations of a modern democratic state

- is a deviation from the rational moderation of modern society, where

each member earns according to his talents, effort and opportunities

- is an elevation of self-interest over the public interest that is inimical to

the greater good

- is an illegal, unjust and immoral appropriation to self of goods, services,

benefits and advantages not otherwise due to an individual, and

- is the tyranny of the majority by a very small minority.

1 Rawls, John, A Theory of Justice, Cambridge, Massachusetts and Oxford, 1971.

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Where corruption runs free and unhindered, as it did in Kenya for many years,

the consequences become self-evident; a dilapidated and fast-crumbling

physical infrastructure; below-par tax remittance and collection; low levels of

domestic and foreign investment; wanton and illegal appropriation of public

land and assets and their conversion into private hands; overall economic

stagnation; weakening of the State’s instruments of governance; compromise of

the rule of law and constitutional governance; rising and uncontrollable crime

and insecurity; rising social upheaval driven by loss of trust in the ability of the

State to perform its functions; and an increasing awareness that the only way to

survive was to suspend the Social Contract and fend for oneself and one’s

family as best as one could.

Corruption fosters social, political and economic conditions that together

constitute the nadir of human existence. Corruption makes nonsense and takes

away the fruits of hard, honest labour and toil. Corruption dismantles a

received value system and replaces it with venal self-interest. Corruption

debases Man and reverses the gains of social, political and economic evolution.

Indeed, corruption is the very antithesis of civilized behaviour and existence.

Judicial corruption generally

In my experience as a teacher of Law, as practicing lawyer, and a Judge of the

High Court and the Court of Appeal in Kenya, I have come to appreciate, first-

hand, what it means to be a member of the Judiciary, and the responsibilities

and expectations thrust upon a judicial officer.

First of all, you are addressed as “Your Honour” if you are a Magistrate, even of

the lowest rank, and as “Your Lordship” if you are a Judge. Citizens and lawyers

alike bow before you, not only in the court room, but in the streets and even in

social places such as Supermarkets. In open Court, you wear a wig, signifying

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wisdom that is acquired not in four or five years studying the subject called law,

but accumulated in the Department of Legal Experience in the University of

Real Life.

Most of all, once appointed a judicial officer, you wield immense power and

discretion, many times far beyond the capacities of most Men and Women.

You are invested, literally, with power to decree life or death; power to decide

who wins and who goes away empty-handed; the opportunity to exercise

Solomonic wisdom in determination of both the basest and loftiest disputes,

whether they be disputes between Men, or disputes over Things.

More than members of the other branches of Government such as the

Executive and the Legislature, a member of the Judiciary by the very nature of

the Judiciary is set apart. Disputes between citizens, and between citizens and

the State, are determined by members of the Judiciary. In many ways, the

Judiciary is often times the f i rs t port of call. In many instances, it is often the

only port of call.

What is true beyond argument is that the power wielded, the majesty conferred

and the exalted station allowed judicial officers are no more than a Public Trust

and a temporary grant of immense power to be wielded cautiously, applied

judiciously and enjoyed rarely, all and only in the public interest.

When Men and Women appointed to the Judiciary as Judges and Magistrates

lose sight of these home truths, there begins the reduction of the Temple of

Justice to a cave of oppression.

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When Judges and Magistrates forget that their station and all that appertains to

it are no more than a Public Trust to be exercised and applied solely and only

for the public good and in the public interest, there begins the fraying of the

social and legal fabric.

When Judges and Magistrates grow into their positions and fail to distinguish

between their persona as individuals and their office as an institution, there arises

the beginnings of misappropriation of power and promotion of anarchy.

When these self-evident propositions are thrown out of the window, the world

over, there begins the unraveling of the Social Contract, with people taking

more than they are entitled to; exercising powers that they do not have or

failing to exercise them for base motives; acquiring things they have neither

earned nor have a right to; and inflicting great injustices in a breach of Public

Trust of epic proportions.

To put it simply, when it goes to the head, all is lost!

I make these observations noting that they do not only apply to Magistrates,

Judges and Judicial officers, but to all persons wherever they may be stationed

so long as they are paid from public funds and charged with the execution of

public responsibilities and duties.

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PART B: CORRUPTION IN THE JUDICIARY IN KENYA

For many years, Kenya, like many other countries, had a serious corruption

problem. The Independence State, through its Executive, Legislature and

Judiciary, first became licentious. The standards of Zero Tolerance dictated by

the Social Contract were relaxed in the post-colonial era. It became the

fashionable thing to do for the ruling elite to pad the pocket and line the wallet

once privileged to sit in a public office.

In no time, the entire population’s perception of life in the public service was

that it constituted an opportunity available to a precious few to jump ahead of

the pack and cross the valley of poverty into the land of economic and financial

plenty, social respect and social status.

Corruption in the Judiciary

The Temple of Justice was not exempt. Magistrates and Judges were not only

perceived to be corrupt, but practiced actual corruption in the exercise of their

duties. As a Judge of the High Court, I witnessed first hand the subversion of

Justice for reasons that could amount to nothing more than straightforward

corruption.

I can do no better on this topic than to share my own experience as the

Chairman of the Integrity and Anti-Corruption Committee of the Judiciary,

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whose Report2 I presented to the Honourable the Chief Justice of Kenya in

September 2003.

Appointment of the Committee

The regime change in Kenya in the General Elections of December 2002 was

driven largely by citizen’s wrath on corruption as a national pandemic, and

more so, in the Judiciary. The Honourable the Chief Justice appointed a

committee

- to investigate and report on the magnitude of corruption in the Judiciary

- to identify the nature, forms and causes of corruption

- to find out the level of bribery in monetary terms

- to report the impact of corruption on the performance of the judiciary

- to identify corrupt members of the Judiciary and recommend disciplinary

or other measures against them

- to recommend strategies for the detection and prevention of corruption

in the Judiciary; and

- to address any other related matters.

My Committee held in camera hearings all over Kenya,. We received hundreds

of written memoranda and received oral representations and submissions from

a total of 925 persons.

2 The Report of the Integrity and Anti-Corruption Committee of the Judiciary, Government Press,

September 2003 – the “Ringera Report”.

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As I have brought along a copy of the Report, I will not reproduce it in this

presentation. The key findings of the Committee were as follows;

1. Both perceived and actual corruption existed in the Judiciary

1.1 Perceived corruption takes the form of feelings, principally by

litigants, that a lost or misplaced file is the result of some

corruption; that a delayed Ruling or Judgment is a hostage to a

corrupt request not as yet made or communicated; that

misunderstood rules and requirements of criminal or civil

procedure are nothing more than corruption in disguise; that

hangers-on and ‘fixers’ in court corridors are purveyors of

corruption; and that a Hearing conducted in Chambers rather than

in open court is itself a facilitation of corruption.

1.2 Actual corruption is our subject today, and it takes the form “petty”

or “survival” corruption, and “grand” corruption. Petty corruption

is the sort practiced by lowly-paid employees to supplement their

emoluments. Grand corruption, on the other hand, is the sort

practiced by well-paid employees in the public and private sectors in

an endeavour to satiate their greed. We found that gratifications to

judicial officers were either in cash or in kind. The level of cash

demanded or given varied with the seriousness of the subject matter

and/or the rank of the judicial officer. Corruption in kind took the

form of gifts of land, fish, goats and other livestock, the supply of

building materials to construction sites owned by judicial officers,

the supply of fuel (gas in American-ese), ‘harambee’ contributions,

personal entertainment and hospitality, and sexual favours. The

most prevalent type of bribery was cash, and the least prevalent the

grant of sexual favours.

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2. The principal causes of corruption in the Judiciary can be summarized as

follows;

2.1 Poor terms and conditions of service

2.2 Bad deployment and transfer policies and practices

2.3 Delays in the hearing and/or determination of cases

2.4 Non-meritocratic recruitment and promotion practices

2.5 Human greed

2.6 Ignorance by members of the public on their legal rights and

entitlements, procedures and processes of the Court and about

the law generally

2.7 The existence of wide discretion on the part of judicial officers in

both civil and criminal matters

2.8 A well-entrenched culture of corruption in the society as a whole

2.9 Excessive judicial workload due to insufficient personnel and

inadequate and/or antiquated equipment

2.10 Inaction or ineffective action against identified corrupt judicial

officers and paralegal staff

2.11 Inadequate or non-existent supervision of judicial officers and

staff

2.12 Protection of corrupt officers by their ‘Godfathers’ and superiors

2.13 Loss or misplacement of court files

2.14 Interference by the Executive branch of Government

2.15 Retention in Service of judicial officers after attaining the

compulsory retirement age

2.16 Conflict of interest on the part of judicial officers

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2.17 The inherent delays in the legal system

2.18 The existence of procedural rules and regulations which are

conducive to corruption

2.19 Lack of sensitization of Magistrates on corruption issues and

newly-enacted anti-corruption legislation

2.20 Non availability or inaccessibility of judicial services

2.21 Widespread phobia for Court and the legal process in the

population

2.22 Poor conditions in prisons and remand homes, fuelling corruption

to avoid them

3. In terms of the levels of corruption, my Committee found that from an

establishment of 3,234 officers as at 30th August 2003, comprising 11

Judges of Appeal, 44 Judges of the High Court, 254 Magistrates, 15

Kadhis (Islamic Courts) and 2,910 paralegals, 152 judicial officers were

implicated in corruption of which 105, or 69%, were Judges and

Magistrates. In the highest court in Kenya, the Court of Appeal, 56% were

implicated. In the High Court, 50% were implicated. In the ranks of

Magistrates, 32% were implicated. Aware that the representations and

submissions made against Judicial Officers had necessarily to be tempered

for various good reasons, there nonetheless were substantial allegations of

corruption, judicial misbehaviour and want of judicial ethics. 5 Court of

Appeal Judges (56%), 18 High Court Judges (50%), 82 Magistrates (32%)

and 43 paralegal officers were implicated in Judicial Corruption,

misbehaviour or want of ethics.

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4. As regards the impact of corruption on the performance of the Judiciary

as an Institution, the rule of law was undermined. The capacity of the

Judiciary to be an independent and impartial arbiter of legal disputes was

compromised. The Judiciary could not champion and safeguard human

rights and the rule of law. The esteem of the Judiciary as an institution was

inestimably lowered. The contribution of the Judiciary to the national

economy was decimated.

5. One of the key recommendations of the Committee was that Judicial

officers implicated in corruption, misbehaviour and want of ethics be

subjected to prosecution in the criminal courts and/or appropriate

administrative disciplinary action be taken with the saving proviso that

those who voluntarily resigned their positions be spared further pursuit as

recommended. For Judicial officers implicated in misconduct in their

extra-Judicial capacities, my Committee recommended that the

Honourable the Chief Justice counsel them to live up to their personal

obligations as Judicial officers.

6. My Committee recommended various legal and administrative reforms

that we felt necessary for the overall good functioning of the Judiciary.

The legal reform proposals included

6.1 High Court judges should be able to continue criminal trials when a

judge is unable to hear a matter to conclusion instead of declaring

such trials to be mistrials, thereby occasioning great prejudice to the

accused persons and even witnesses in re-starting the prosecutions.

6.2 Nolle Prosequi be signed personally by the Attorney General

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6.3 Establishment of a Supreme Court with appellate jurisdiction over

the Court of Appeal

6.4 A fast-track procedure for dispensing with Constitutional References

on Constitutional Interpretation and protection of Fundamental

Rights and Freedoms. This has already been achieved through the

promulgation by the Chief Justice of Rules governing the conduct

and dispensation of Constitutional Applications.

Administrative reform proposals included:-

6.5 Magistrates Courts should be manned, at the least, by a Senior

Resident Magistrate with jurisdiction to deal with all criminal cases in

the remote and geographically expansive areas of Northern Kenya

and the Coast Province.

6.6 All judicial units should have financial and operational autonomy, de-

linked from the District Treasuries, in charge of their own finances

and with their own physical infrastructure and motor vehicles. This

will address Executive interference squarely.

6.7 The duties of the Registrar of the High Court and of the Chief Court

Administrator should be clearly defined. We proposed that the

Registrar deal with all matters pertaining to Judges and Magistrates,

and that the Chief Court Administrator deal with paralegal staff and

other day-to-day administrative matters involving courts.

6.8 Formulation and implementation of a transparent transfer policy

6.9 Automation of court proceedings, computerisation of the registries,

expansion of court houses and increasing the number of Judges and

Magistrates

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6.10 Improved remuneration and better terms of service for the lower

judiciary

6.11 A system of wealth declarations by judicial staff, which has been

effected for all public officers through The Public Officer Ethics Act

2003.

6.12 Closer monitoring and supervision of judicial staff

6.13 Better personnel recruitment, deployment and disciplinary systems

and practices

6.14 Public education on citizens’ rights in the courts.

PART 3: STRATEGIC RECOMMENDATIONS FOR JUDICIAL

PROBITY

The aftermath of the presentation of my Committee’s Report was what is now

commonly referred to as ‘Radical Surgery’ of Kenya’s Judiciary. The moniker is

apt because the findings were so devastating as to be precedent-setting in a

Commonwealth jurisdiction. Under the Constitution of Kenya, Judges are

Constitutional Officers whose appointment, remuneration and removal is

governed by Constitutional provisions. 15 Judges of the High Court and the

Court of Appeal opted not to subject themselves to the Constitutional process

of challenging the charges against them and resigned.

Of those who opted to challenge their accusers, 1 Judge of the Court of Appeal

and 1 Judge of the High Court have since been exonerated after going through

Tribunals appointed to probe the allegations against them. I other Judge of the

High Court had the good fortune of having the inquiry into her conduct

dropped by the Executive.

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Ladies and Gentlemen:

For the World Bank and its anti-corruption and good governance strategies and

programmes, it is critical, in my humble opinion, to

1. Infuse, through vigorous upholding of the principle of Zero Tolerance,

the elevation of the Public Interest over Self Interest in all interventions;

2. Target assistance to both developing and developed Nations towards

strengthening the systems, Institutions, procedures and practices that

perform watch-dog duties over Judicial officers and public officers

generally;

3. Support programmes both for the introduction and effective

implementation of Codes of Conduct and Ethics for Judicial and public

officers;

4. Target assistance geared towards strengthening the Institutional capacity

of the Judiciary to effectively manage its affairs and police its officers; and

5. Target assistance towards strengthening the processes that lead to the

identification and appointment or election of Judicial officers with a view

to blocking the ascension to offices in the Public Trust of individuals

whose track record does not inspire confidence that they will perform as

expected once on the Bench.

Ladies and Gentlemen:

I would wish for nothing greater than an entire day, maybe a week, to share my

experiences with you and to learn from your own experiences. However, I

suspect my allotted 25 minutes are over by now.

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Allow me, Ladies and Gentlemen, to rest my case at this juncture on the

promise that I will respond to the extent that I am able to any questions that

may be posed or clarifications that may be sought.

Thank You.

Justice (Rtd.) Aaron Ringera

Director & Chief Executive

Kenya Anti-Corruption Commission