Amid rising concerns over corruption, incompetence, and delay of cases, a growing push for fresh round of vetting of judges and magistrates is gaining momentum.

The legal community argue that such a process is essential for restoring integrity in the Judiciary, citing various controversial cases, particularly those involving elections and tax regulations. Lawyers now contend that the vetting would review not only the judges themselves but their decisions and overall conduct.

A memorandum from the Law Society of Kenya (LSK) to the Judiciary points to the current judicial system as one that has left millions of Kenyans without access to justice, sparking calls for swift reforms.

Faith Odhiambo, LSK chairperson, has said the lobby will form a committee early next year to collect complaints regarding judicial misconduct, with the aim of addressing corruption.

“The most glaring form of judicial misconduct has to be corruption. Instead of justice and truth being weighed against evidence, it is traded and auctioned to the highest bidder in total disregard to the rule of law and constitutional and legal principles,” reads the LSK memorandum to Chief Justice Martha Koome.

The momentum for a new vetting process further intensified following comments made by Chief Justice Martha Koome on December 11, in which she reaffirmed the Judiciary’s commitment to fighting corruption.

Koome has rejected calls for her to resign. She said she has been a target of cyberbullying, which she referred to as “technologically facilitated gender-based violence.” She said this was part of a broader attempt to intimidate and discredit her.

“When I speak, I always confess that I’m a victim of cyberbullying—or is it called technologically facilitated gender-based violence? But I know the intention. It’s a business model; I don’t know what it’s meant to achieve. Maybe to scare, distract, defame, or hound me out of office, but they can try something else,” Koome remarked.

In response to these concerns, Odhiambo said the Society would set up a committee early next year to collect complaints against corrupt judicial officers, as part of an effort to root out graft in the Judiciary.

“While the delay in the delivery of judgments and rulings is partly attributed to understaffing in the Judiciary, one should even be forgiven for thinking that the delay allows time for bribe negotiations. The payment of ‘facilitation fees’ in order to access even the most basic court services is also an indication of the systemic rot within the Judiciary,” Odhiambo said in the memorandum.

Former LSK President Nelson Havi has been particularly vocal about the Judiciary’s integrity, claiming that corruption is deeply embedded in the system. According to Havi, lack of accountability is a primary reason for case delays and compromised justice.

“Judges and magistrates have prioritised personal wealth over justice,” Havi said. “They issue biased rulings motivated by money rather than law.”

He highlighted specific cases, such as contradictory rulings and a High Court judge’s disregard of a Supreme Court decision in a land case, as indicators of misconduct and corruption.

“There are judges who joined the Judiciary with a bicycle, but now they are multimillionaires and they don’t care what Kenyans think,” Havi said in an interview with The Standard yesterday.

LSK’s memorandum further detailed several challenges facing the Judiciary, including inconsistent rulings, and delays in implementing reforms.

“Our analysis highlights the deep-rooted issues in the Judiciary, including corruption, misconduct, and a growing disconnect between the bench and the bar,” the memorandum stated.

It also pointed out that persistent complaints from LSK members and the public have pointed to cases involving county governments and county assemblies, which have raised concerns about judicial influence and bias. LSK claimed that some county governments, particularly in the Lake Region, have placed judges on unofficial “payroll” to ensure favourable rulings.

Governors and other county leaders, aware of which judges will handle specific matters, exploit this predictability to shield themselves from adverse orders.

“While we recognize that our actions may be uncomfortable for some in the Judiciary, restoring public confidence is far more important than any apprehension from judges or judicial officers,” the memorandum read.

Havi also called for a review of judicial rulings that have raised suspicions of corruption, citing instances where rulings appeared biased and failed to adhere to established legal principles. He argued that many judges are driven by financial gain instead of commitment to justice.

“There is an accountability failure in the Judiciary,” Havi said. “Judges have developed an insatiable appetite for things they did not work for. They have no regard for the law or the Constitution.”

Havi emphasized the need for stronger oversight and more frequent vetting of judicial officers. They believe that judges must be held accountable for their actions, just as other public servants are.

“Judges and magistrates are public servants, and they must be supervised and held to account,” Havi said. “They must be dismissed when necessary, just like any other government employee who fails to do their job properly.”

In their memorandum, the LSK also highlighted several inefficiencies within the judicial system, such as delays in ruling on the Finance Act 2023, which has created uncertainty in the legal and business environment. They pointed out that public trust in the judiciary is paramount, and addressing issues like judicial independence and corruption is crucial to restoring confidence.

“Surveys and complaints from our members and the general public place the Judiciary as a ‘weak link’ in the administration of justice. Similarly, allegations of corruption, coupled with inconsistent development of jurisprudence, have made it difficult for the Judiciary to defend and re-evaluate itself,” the LSK stated.

The Court of Appeal has also been accused of being slow in making decisions, often issuing inconsistent rulings. The Supreme Court, too, has faced criticism for inconsistencies, as seen in the Geo-Chem Middle East case. Administrative issues, such as e-filing problems and inadequate infrastructure, have further undermined the system’s efficiency.

“For instance, recent decisions on the constitutionality of the Finance Act 2023 and the IEBC Amendment Act were delivered two years after they were brought before the courts. The delay rendered these decisions too late to address the issues for which the legal challenges were filed, creating avoidable uncertainty on crucial legal matters,” LSK noted.

The lawyers body also pointed out that while there have been reforms in the Judiciary post-2010, corruption and delays continue to plague the system, undermining its credibility and public trust. They called for a more effective framework for investigating complaints against judicial officers.

LSK added that high-profile cases, such as the one involving former judge Said Chitembwe, who was removed by a tribunal, had exposed judicial misconduct.

“Such misconduct damages the Judiciary’s integrity and undermines public confidence in the legal system,” LSK observed.

The memorandum highlighted the slow pace of decision-making in the Court of Appeal, which has been criticized for taking excessive time to resolve appeals. This has led to the Court of Appeal being labeled the “graveyard of progressive jurisprudence.”

It called on the Supreme Court to carefully shape the law, ensuring that decisions are consistent and predictable. LSK emphasized the importance of decisions that reflect constitutional principles and the rule of law, as inconsistency in rulings erodes public trust.

“In the case of Geo-Chem Middle East v. Kenya Bureau of Standards, the Supreme Court’s inconsistency in handling jurisdictional objections and appeals has led to doubts about the Court’s integrity,” the memorandum said.

LSK reminded judges to respect their oaths and urged Koome to address the deteriorating state of many court stations, some of which are desperate need of renovation.

“Despite post-2010 progress, inconsistencies, corruption, and lack of self-regulation continue to undermine the Judiciary, eroding public confidence and stability,” the LSK explained.

It notes that there is an “inexcusable” upsurge in suspended court proceedings on account of Judges and Magistrates attending to miscellaneous activities and functions.

LSK said the Complaints framework has long been subjected to criticism owing to the inordinate delay in the processing of complaints, a lack of transparency and a complicated process of processing the complaint(s).

“We are emphatic that the Judiciary is in a ripe position to undertake this overdue overhaul of its structures to revitalise the state of the Judiciary and reclaim its rightful position within Kenya’s Constitutional framework,” LSK said.