Comment

Friday, January 23, 2004

WACHIRA MAINA / GRAFT IN THE BAR

Time to complete the judicial clean-up

After months of talking tough, the Law Society of Kenya has asked the Government to sack another nine judges for corruption and incompetence. This will shock the judges who had escaped Ringera’s cleaver. It will also surprise those who distrust the LSK.

The Society has long been accused of complicituous silence over the rot in the courts. In theory, its new report should help the LSK’s image and energise the campaign against graft in the legal profession.

More important, it will certainly help Minister Murungi’s radical surgery which has lately seemed to lose its initial oomph. But, and this is the point, more is needed.

First, the LSK’s proposal that a complaints mechanism be established in the Judicial Service Commission needs immediate action. Few members of the public know what to do or where to go when judges and magistrates demand bribes from them. It does not help that courts are armed with vast powers to punish for contempt. Litigants fear that complaints will only invite judicial wrath and unfavourable judgments. A good complaints system must protect and ensure confidentiality.

Of course, it is important to protect judges from vindictive litigants. Some people are nasty losers: any judgment against them is proof that the judge is on the take from the opposing side. Given an opportunity, these types could flood the Judicial Service Commission with vexatious complaints. But this is a matter that can be addressed by the rules that will govern the filing of complaints.

This is not to say that we should fully trust the Commission. To make sure that it does not simply sleep on the complaints, the rules must demand that it makes an annual report to the Chief Justice and the public.

Secondly, we must remember that it is still early days in the fight against corruption. The Judiciary will not reform merely because the list of the corrupt has grown longer. There has to be a real break with the past.

First off, there is urgent need for serious institutional reforms. Some measures are relatively easy. Electronic recording of court proceedings is surely overdue. Court proceedings are still manually recorded by the judges and magistrates themselves. Corrupt or lazy judges and magistrates get their way by simply not recording arguments made by the parties they wish to fix.

Courts are in desperate need of research services. Court judgments in Kenya are generally thin on authority and even thinner on rigour. Many read like shabby First Year exercises in legal writing.

A first step towards ridding the courts of these excesses is to build competent research capacity. In the US, each Supreme Court judge has two or three clerks to assist in research and writing of opinions. Supreme Court clerks are not administrative officers like clerks in Kenya. They are the best and brightest graduates from America’s top law schools. It’s an idea that Chief Justice Gicheru and the Principal of the School of Law must look at.

Small claims’ courts are also long-overdue. Petty disputes involving city by-laws, little sums of money or trivial personal matters are clogging the court system and disrupting the filing. This overload delays the administration of justice.

But institutional reforms are not enough. The court must also recruit competent professionals. We have focused so heavily on recruiting only honest lawyers that we may lose sight of the fact that they also need to be top-notch professionals.

The damage done by a corrupt judge is easy to undo. That done by an incompetent Judiciary is much harder to fix. With the help of the Judicial Service Commission, the Chief Justice must find ways of carrying out regular judicial appraisals. Where appropriate, the Commission should offer sabbaticals and additional short courses to judges and magistrates.

And here there is no need to re-invent the wheel. The Institute of Certified Public Accountants, ICPAK, requires its members to have a minimum of 20 hours of Continuous Professional Education every year. The principle is sound. The Judiciary and the legal profession should adopt it.

But there is also need to address the human resource issues. If the judges on the LSK list are sent packing, the President must appoint new ones to replace them. If he follows the precedent he has already set, new appointments will be in an acting capacity. This is bad for long-term morale. As it is, the Judiciary is far from capacity and the judges appointed last year are still wet behind the ears.

We should not create anxiety by keeping judges temporary for too long. Given that many judges on Justice Ringera’s list of shame have opted to retire, it is time to come to closure. There is now no credible argument against confirming the acting judges in their new jobs.

Thirdly, the LSK is smart to recommend changes in the lawyers' disciplinary process. The admission that, as it is, this system sucks, should help the LSK recoup some of its lost standing. But even here more can be done. At the moment the LSK focuses mainly on advocates who have current practising certificates. Yet there are numerous lawyers offering other types of services who are not in its ambit.

For instance, there are non-practising lawyers working in NGOs, the commercial sectors and in the consultancy market. These can offer shabby services without risk of discipline from the Law Society. What Kenya now needs is a split profession. One part of the Society would deal with issues of practising lawyers. A second part would deal with all others.

Finally, constitutional government rests on eternal vigilance. It is easy to slip into the comfortable idea that once a cart-load of corrupt and the infamous judges have been packed off, all will be well. Not so. Even as the judicial clean-up goes on, there is credible evidence that in some places in Kenya, the bad guys are fighting back. Vigorously.

This seems improbable at first sight. But consider. Corrupt judges and magistrates reckon that they can have their cake and eat it too. If caught, they get to keep the bribes they have received and their pensions too. After a decent interval of munching these generous pay-offs, they can open law firms and get back to business.

Clearly, just sending judges and magistrate’s home no longer seems like a very smart idea. Chief Justice Gicheru and Minister Murungi must show some teeth this time. There must be some blood on the floor. If there isn’t, radical surgery will come a cropper, sabotaged by the very people it was meant to rid us of.

Mr Maina is a constitutional lawyer