SUBMISSION TO THE JUDICIAL SERVICE COMMISSION COMMITTEE ON JUDICIAL INDEPENDENCE AND ACCOUNTABILITY

MAY 5TH, 2019

A CRY FOR JUSTICE In the media, we often say that unlike surgeons, we put our mistakes on the headlines. Surgeons bury theirs. We believe that the Judiciary’s work is in many ways like that of the media: All the decisions it makes, whether good or bad, must invariably be aired in public, and are thus open to scrutiny and criticism.

We have been asked to present our views on Judiciary independence and accountability since promulgation of the new Constitution in 2010, based on our experiences, knowledge and observations. We approach this from the vantage point where we pay close scrutiny to what goes on in our courts, as court reporters and photographers, and as editors who edit the stories emanating from courts. Indeed, our observations get perspective from the period before the promulgation of the Constitution in 2010, to the subsequent establishment of the new-look Judiciary with the Supreme Court as the Apex Court.

We reported on the legendary failings of the Judicial system, leading to the Task Force following the exit of the Kanu regime at the end of 2002 and the ‘Radical Surgery’ the following year led by Justice Aaron Ringera. Some 23 out of 45 Court of Appeal and High Court judges, and 82 of 254 magistrates were found to be implicated in corruption and other failings.

They were given two weeks to resign over the ‘corruption virus’ or face tribunals to look into their conduct and suitability for office. They were indicted on corruption, laziness, incompetence, biased rulings, and histories of susceptibility to pressure from the State or willing collusion with political actors.

That was in 2003. What has changed since then? Would we in 2019 be discussing Judiciary independence and accountability if Justice Ringera’s ‘Radical Surgery’ supported by then Chief Justice Evans Gicheru and Justice Minister had succeeded? As a matter of fact, nearly a decade after the ‘Radical Surgery’, we went through yet another judicial reform process. Under the new Constitution in 2010, established the Supreme Court with a judicial outsider, Dr Willy Mutunga, as the first President and Chief Justice. The new law also required vetting for all serving Judicial officers, under which many High Court and Appellate judges and magistrates were found unsuitable for office.

After he took office, Chief Justice Mutunga initiated the Judiciary Transformation Framework, which identified four pillars of reform:

• “People-centred” delivery of justice;

• Improving organisational culture and professionalism;

• Ensuring adequate infrastructure and resources; and

• Making better use of information technology. The first pillar, focused on ensuring access to justice and public engagement, included such actions as establishing customer care desks, simplifying court procedures, creating a case management system, and strengthening complaint mechanisms. The second pillar focused on changing the Judiciary’s institutional culture, increasing training, and clarifying individuals’ responsibilities. The third and fourth pillars sought to expand the court system, to computerise its procedures, and to upgrade its IT infrastructure.

We are aware that there is also the Judicial Performance Improvement Project (JPIP) designed to scale up and sustain stakeholder participation in the administration of justice and restore public confidence in the Judiciary. Key expected outcomes included:

• Increasing access to courts and provision of legal information by reducing geographical distance to courts; improving links to court users and potential users and reducing knowledge barriers;

• Improving timeliness of Judiciary services through the reduction of blockages in the registries; increasing efficiencies by having improved facilities; and increasing the speed of case resolution;

• Enhancing performance and quality of decision making by increasing the use of standards and data in management of the Judiciary; improving consistency, clarity and strengthening integrity in decision making. It appears to us that since the Radical Surgery in 2003; onto the Judiciary Transformation Framework in 2012; the Judicial Performance Improvement Project which succeeded it and was supposed to end in 2018; and finally, the Committee on Judiciary Independence and Accountability, we are saying the same thing in different words. On matters of Judicial improvement, we seem to have been running on the spot since 2012. The language seems to cleverly ignore or minimise the real problems in the Judiciary: Corruption, sloth, incompetence, case backlog, and judgments based on cowing to State pressure or loyalty to ethno-political formations. Given the foregoing, therefore, the Kenya Editors’ Guild wishes to raise the following concerns: 1. In communication from the Chief Justice, the JSC, the Attorney-General and other organs, judicial reform or transformation is about the number of courthouses constructed, number of judicial officers employed, and other such brick and mortar outputs. There is very little seen in and talked about the transformation of the quality of service. The transformation we hail does not appear to have changed the culture of the Judiciary. It remains an opaque and distant institution for the ordinary citizen. • Indeed, there are very real perception problems about irrational and inconsistent sentencing, and existence of two scales of justice, one for the poor, and another for the rich and powerful. Many tales have been told of the chicken thief or pickpocket who gets a stiff jail term for a very minor offense; and the powerful and wealthy suspect accused of murder or grand corruption who manages to delay a case for ages and finally gets away with it. For example, Member of Parliament Joy Gwendo was sentenced to two years in jail by a magistrate’s court for defrauding Sh1.7

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million. However, a Judge set aside the jail term and substituted the jail term with a fine of Sh600,000. She ended up with a profit! Recently, a magistrate gave Samburu governor Sh150 million cash bail terming corruption as bad as murder. A judge immediately reduced that to Sh10 million. The case in Kenya of the ‘ChickenGate’ suspects is yet to take off. Those who paid them bribes in the UK have served their terms. The Samuel Gichuru-Chris Okemo case is still tied up in our courts.

2. The apparent ease with which politicians, members of the bench and members of the bar extract fairly high defamation awards, often with little regard to any jurisprudential standards and/or the need to promote media diversity is an affront on media freedom. While we do not advocate for irresponsible media, we believe penalties should be meted in a way that does not undermine the media’s role in our democracy. • In the Evan Gicheru case, the Court of Appeal held Ksh6 million as damages for the Chief Justice and said that no lawyer of whatever stature would exceed that of a Chief Justice. Since then, several courts have ignored this decision and made awards far higher than that for advocates and judicial officers. An example is the Ksh20 million the High Court awarded Justice Mukunya of the Employment & Labour Relations Court in total disregard of the Court of Appeal ruling.

3. Our experience is that the constitutional values of transparency and respect for the citizen are not borne out in the way that the Judiciary and all its staff, not just Judges, treat members of the public. In this regard, court reporters still find it extremely difficult to get information that is meant to be available in the court files, in total disregard to the public’s right to information. This has contributed to misreporting on court cases, sometimes based on reliance on information provided by interested parties. Registries that have been helpful include the Judicial Review & Constitutional Division as well as the Anti-Corruption Division. In most other stations, staff are hostile and often hide documents in cases of high public interest. That is akin to gagging media. Editors are concerned that interview requests from journalists to judges and magistrates are routinely ignored. Not even submitting formal requests through the registrars or the communication office has helped. • Even more shockingly, we have encountered instances were Judicial officers side with accused persons who are trying to evade media scrutiny, especially in corruption cases. A good example is when, recently, a magistrate summoned editors from both the Daily Nation and the Star newspapers over one of the NYS cases. Against Nation he complained of misreporting, and in the case of the Star, he questioned why a picture of an accused person was used instead of a different party mentioned by a witness. The magistrate wasted an entire morning session demanding to see editors rather than their legal representatives, and ended up adjourning the substantial case.

4. Lack of transparency also affects proceedings of the Judicial Service Commission, which are never relayed promptly to the media for reporting. Indeed, at the time of writing this submission there are JSC proceedings and decisions that remain shrouded in mystery and inaction despite them touching on grave matters such as independence of the Supreme Court.

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5. Some of the bad old habits remain: Court proceedings still routinely begin late, usually not earlier than 9:30am. It some instances, one is left with the sense that there is a huge conspiracy by the judiciary and its sister agencies in the Administration of Justice against court users. In many stations, a magistrate or judge walking in an hour or two late is not strange. The Judiciary’s promise is at odds with what its customers actually experience. This shows a JSC that is yet to have a proper mechanism of supervision to ensure compliance with the regulations and work etiquette. Here is a specific case sent in to one of the national newspapers by a court user in her own words:

“On Thursday, June 14, 2018, I was stopped by a police officer on the Southern Bypass for doing 114 kph in a 100 kph zone. I stated that I had no money on me and, after a long wait, was given a free bond with threats of arrest if I did not show up in court.

By 7.45am on Monday, I was at the Milimani Law Courts, where I found a small crowd waiting at the gate. A police officer greeted us with charm and asked us to follow him into the court.

Outside Room 9, he examined our notices and told us that our fines could be Sh13,000 upwards but he could take Sh10,000 from each of us and the matter would end. We declined his ‘help’. He told us to wait as the judge would come at noon. It was 8am.

At 10.30am a magistrate walked in. He was polite and listened keenly. He was not assigned to us and left shortly thereafter.

The prosecutor studied our traffic offences and commented how high the fines would be. She stood there awkwardly and left. A driver informed me that that was a way of asking for a bribe.

Then the doors were opened and many people walked in. The policemen with them were rude. They walked around the benches asking people what their offences were and stating how high the fine would be. They were willing to ‘help’ any willing person.

People gave out their notices to the policeman who ‘worked’ our bench. “Yours will be 30,000,” he informed a matatu driver.

He quoted figures that had people squirming in their seats. A matatu driver approached him but was soon back on his seat; maybe the bribe was too high.

The officers had many ‘seeing’ them. The numbers had reduced by the time the magistrate walked in at 12.45pm. The court clerk began calling out names. Those caught without seatbelts were heavily fined on pleading guilty, or hit with a significantly higher bond for saying “no”.

I was fined Sh15,000. Matatu drivers who denied the charges were granted bonds of Sh30,000 to Sh50,000. The magistrate exited and we began paying fines.

A policeman told me I would be on the bus to Lang'ata Women’s Prison as it was leaving at 2pm. I paid the money soon after and was asked to sit down as

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the receipt was written by the cashiers and the rude officer. I promptly informed them that I would only sit down once I had seen my receipt being written.

A long wait then ensued filled with police harassment including being asked one’s tribe.

I finally left the courtroom at around 5 pm, having gained a world of experience in the way the Judiciary and police work in Kenya. Every blue uniform I saw on my way home seemed like an alien life form waiting to cannibalise the unfortunate Kenyan who crossed their paths.

This is an account from just one individual, but we believe it is replicated every day in every court house in Kenya. It forms the perception many have of the judicial system. The example given illustrates the petty corruption common in courts and the collusion between judicial officers, policemen and court clerks.

6. While we appreciate that the Judiciary is underfunded compared to the other branches of government, the clamour for additional funding might not win much sympathy from those who have been at the receiving end. Recently, we have seen the clamour for limousines and expanded perks, so that those on the Judicial Branch can match the luxuries and perks enjoyed by counterparts in the Legislative and Executive Branches. There have been recent newspaper reports that the Judiciary had included in its Budgetary requests Sh2 Billion out of Sh5 billion for the purchase of limousines for judges. To burdened taxpayers in an economy like Kenya’s, this might not be a priority. Chief Justice Abdul Majid Cockar was quite happy to use an old Peugeot 504, and there is no evidence that his court was any less efficient than those of judges who insist on the latest Mercedes Benz cars. Judges certainly need motor vehicles, but could be much more prudent in this regard.

Finally, we have dealt here with broad issues around the whole arena of Judicial reforms, fortified with a few examples to illustrate deficiencies in the Judicial regime despite years of reforms. Our considered view is that rapid expansion and reform of the Judicial branch architecture may be impressive, but has done little to cure the chronic illnesses that are all too evident to anyone using the court system.

We are also concerned that Judicial independence is undermined by structural weaknesses that has seen it underfunded. Use of the Exchequer as a tool of reward and censure is an affront to Kenya’s Constitutionalism and weakens the rule of law.

Issued in NAIROBI on May 5th, 2019 For and on behalf of the Kenya Editors’ Guild

CHURCHILL OTIENO PRESIDENT

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About the Kenya Editors’ Guild

The Kenya Editors’ Guild (KEG) is a not-for-profit professional organisation that brings together senior print, broadcast, digital and other electronic media editors. It seeks to: defend and promote media freedom and independence in Kenya; promote quality and ethical journalism; provide a forum for the discussion of the challenges facing the media and editors; and to network with other professional organisation, among other imperatives.

For more details and clarifications, please contact:

Rosalia Omungo or Annie Waite H12 Delamere Flats, Milimani Road, Nairobi +254 20 2720554, +254 20 2724756 Website: www.kenyaeditorsguild.org Twitter: @KenyaEditors

President: Churchill Otieno Member (Online Media): Faith Oneya Trustees: Vice President: Samuel Maina Member (Television): Samuel Muraya Pamela Sittoni Ag. Secretary/CEO: Rosalia Omungo Member (Radio): Ruth Nesoba Macharia Gaitho Member (Print Media): Evelyne Kwamboka Member (Academia): Dr. George Nyabuga Arthur Okwemba

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