Corrupt Judges served poetic justice

History has been made with the conviction and sacking of two high level members of the Kenyan judiciary. Two High Court judges, Justice Tom Mbaluto and Justice Vitalis Juma were found guilty of the charges of corruption, unethical behavior and recommended for relieving of duties by the president. The findings of 'guilty as charged' against the two were the subject of recommendations of the tribunals constituted investigate the judges which have since been handed to the President for action.

Section 62 of the Constitution

The tribunals had been established pursuant to section 62 of the constitution of Kenya. Judges of the High Court and Court of Appeal enjoy a security of tenure. This means that they cannot be relieved of office, even where there are weighty allegations of abuse of office or incapacity like a normal civil servant. This is intended to protect the independence of the judiciary. However, over time, it had been a sword and shield for corrupt judges out to block efforts to serve them justice.

Thus, to remove a judge, the president must first constitute a tribunal to investigate the alleged conduct of the judge. It is only on recommendations of such tribunal can the president proceed to sack the judge.

Priests of temple of justice

Judges have elsewhere been likened with priests of the holy temple of justice with the intention of giving expression to the standard expected of them. Given the role of the judiciary as the arbiter of disputes between warring parties and sole interpretor of the law in disputes, demanding integrity of the judges is not a tall order. Or is it?

Judges must be free from any association with corruption. They must be beyond bias, whether induced by favours given or merely likely. That way, justice can succeed in not only being done but being seen to be done as the old mantra goes.

Justice Mbaluto and Juma guilty of corruption

That is why the sacking of Mr Justice Mbaluto and Mr Justice Vitalis Juma is laudable. The two former judges the High Court of Kenya were found to have been involved in corruption and unethical behaviour. These were the findings of tribunals established in 2003 to investigate them after the radical surgery of the judiciary following Justice Ringera Committee recommendations on corruption the judiciary.

In justice Juma's case, the finding of the tribunal probing his conduct led by retired Chief Justice A.M Cockar the verdict was "The complaints made in the proved allegations consist of corruption, unethical practices and absence of integrity ... In our view, the judge is not fit to be a judge of the High Court of Kenya."(Quited as reported in Daily Nation 03/05/08).Justice Juma was found guilty of extorting bribes of a total of Kshs 225,000 to rule in favour of litigants.

Justice Mbaluto was accused of, inter alia, receiving Kshs 50,000 and a paltry bag of millet to rule in favour of a litigant. The tribunal investigating him led by his hitherto collegue Lady Justice Lesiit said that the judge exhibited bias in the case he was accused of taking inducements. The former judge was also found to have advanced his personal interests with a litigant having entertained him in a named club.

Another judge exonerated

However, the tribunal investigating the suspended High Court Judge Msagha Mbogholi led by his Lordship Cockar found that none of the 10 allegations leveled against him was proved and thus exonerated him. The learned judge was recommended for reinstatement to the bench.

It will be remembered that Justices Mbaluto, Juma and Mbogholi were suspended alongside 2o other judges and 73 magistrates on October 14, 2003. His Lordship Mbogholi joins the ranks of Appeal Judge Philip Waki, Daniel Aganyanya and High Court Judge Roselyn Nambuye who have been cleared of corruption and reinstated to the judiciary.

However, most of the judges implicated then opted to retire rather than face the tribunal. Mr Justice Juma has pointed out that the President ironically handed letters of commendation thanking those judges for exemplary service during their tenure in judiciary. The point the contemned judge is driving home is the same one that Theodore Roosevelt made long ago: There should be no one who is above the law or below it!

Need for a full time tribunal

One can only hope that the guilty finding against the two judges will relay the right message to our judges: That corruption does not pay and in their case, it is treasonous abuse of trust. However, intermittent tribunals of judicial colleagues is not what will purge our judiciary of corruption. There is need for a standing judicial disciplinary body dedicated to probing accusations against judges as they arise. The disciplinary body should also be de-linked with the executive as otherwise it will undermine the independence of the judiciary.

The body should also be made to expedite hearings to avoid a scenario where Kenyans have to wait 5 years to know the fate of allegations against a judge as is the present case.

Magistrates are the black sheep

That we never got to hear the fate of the allegations against magistrates tells use that justice in the justice department is skewed in favour of the senior members of the bench. Magistrates done enjoy security of tenure. They can be removed arbitrarily or without elaborate procedure. This goes against the right for those contemned to be afforded a fair hearing.