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 Kiraitu Murungi 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, Kenya 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 A CRY FOR JUSTICE – Submission to JSC on Judicial Independence and Accountability 2 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. A CRY FOR JUSTICE – Submission to JSC on Judicial Independence and Accountability 3 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.