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KENYA: JUDICIAL INDEPENDENCE,CORRUPTION AND REFORM

April 2005

Kenya: Judicial Independence, Corruption and Reform

The ICJ is a worldwide network of judges and lawyers united in affirming international law and ruleof law principles that advance human rights.

Present in 70 countries across all regions of the world, the ICJ is composed of 60 eminent jurists electedby its members. The ICJ has 37 national sections and 45 affiliated organisations. TheInternational Secretariat is based in Geneva

Having as members many to the world's most prominent judges and lawyers drawn from every legaltradition, the ICJ has the capacity to mobilise authorative and practical expertise on almost any humanrights rule of law issue. It can command attention at the highest level of the judiciary, legislature and government.

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Ernst Lueber

This project has been made possible with the financial support of the Ministry for Foreign Affairs of Finland

Ernst Lueber


International Commission of Jurists 1

CONTENTS

Summary and Main Findings ......................................................................................03Radical surgery and subsequent events................................................................03Main findings and conclusions.............................................................................03

Introduction....................................................................................................................07Objectives of the ICJ Mission to Kenya .............................................................07Background...........................................................................................................08

Judicial Independence and the Reform Process in Kenya........................................12Overcoming executive dominance over the judiciary............................................12Timeline of the Investigation of Judicial Corruption in Kenya 1998-2003 .........15

Judicial Independence and the “radical surgery” .....................................................17Security of tenure and due process in the radical surgery....................................17The role of investigative tribunals........................................................................20Lack of public complaints procedures .................................................................22Undue interference with freedom of association and expression .........................23Reinforcing ethical behavior of the judiciary........................................................25Role of the media and civil society in judicial accountability...............................26Comprehensive efforts to fight corruption ..........................................................26

Appointments and Promotions in the Judiciary ........................................................28Qualification criteria for appointment and promotion.........................................28Ethnic and gender representation in the judiciary ................................................29Appointment of acting judges..............................................................................30Transparent and effective consultations ..............................................................31

Strengthening the Judicial Service Commission .....................................................33The reform of the Judicial Service Commission...................................................33The Judicial Service Commission under the draft Constitution...........................33Improvement under the current constitutional framework ..................................34

The Magistrates and the Magistrates Court..............................................................36Security of tenure.................................................................................................36Appointment and promotion of magistrates........................................................36Working conditions of the magistracy..................................................................37Structure of the magistrates courts.......................................................................38Judicial education and training..............................................................................38



Financial and Administrative Autonomy of the Judiciary .......................................39Executive dominance ............................................................................................39Financial autonomy and sufficient resources .......................................................39Administrative independence...............................................................................40

Additional Components of Judicial and Legal Reform.............................................41Judicial education and training..............................................................................41Public perceptions and access to justice ..............................................................42

Conclusions and Recommendations............................................................................44Constitutional framework of the judiciary...........................................................44Judicial independence and accountability.............................................................44On judicial ethics and the right to freedom of association....................................45On appointment and promotion in the judiciary .................................................46On the Judicial Service Commission ....................................................................46On the Magistracy ...............................................................................................47Administrative and financial autonomy ...............................................................47On judicial education............................................................................................48On access to justice..............................................................................................48On the judicial reform process .............................................................................49

Annex 1: List of persons met (formally and informally) by the ICJ mission..................50Annex 2: Bibliography .....................................................................................................52



SUMMARY AND MAIN FINDINGS

The International Commission of Jurists(ICJ) in partnership with its KenyanSection (ICJ-Kenya) conducted a high-level fact-finding mission to Kenya inDecember 2004.

The mission examined the state ofjudicial independence and accountabilityfollowing major political changes in 2002and the election of the currentgovernment. The ICJ met with variousstakeholders in the government, thejudicial and legal system, civil societyand the media. This report analyses theimpact of what became known as thepolicy of “radical surgery” of thejudiciary in light of internationalstandards. The ICJ places its findings onjudicial independence and accountabilityin the broader framework of ongoingjudicial, legal and constitutional reformsin Kenya.

Radical surgery andsubsequent events

Prior to the 2002 political transitionfrom President Daniel arap Moi toPresident Mwai Kibaki, the judiciary inKenya was widely known to be corrupt.Addressing corruption as an obstacle tothe rule of law, the new government setup the “Integrity and Anti-CorruptionCommittee of the Judiciary in Kenya” toimplement its policy known as “radicalsurgery”. Following the release of theCommittee’s report in 2003 (the RingeraReport), five out of nine Court ofAppeal justices, 18 out of 36 High Court

justices and 82 out of 254 magistrateswere implicated as corrupt. Prior toinforming the accused of the allegationsagainst them, the government ordered thepublication of their names, which thenappeared in the national press. Thegovernment refused to release the report.The impugned justices and magistrateswere issued a two-week ultimatum eitherto resign or be dismissed. While manyhave resigned or “retired”, some havemounted legal challenges against theirdismissals. Since the tribunals started tohear these cases, only one case has beenresolved, with the acquittal andreinstatement of Justice Waki in late2004.

In a series of appointments made in2003/2004, the President used hisauthority to appoint 28 acting HighCourt justices to replace the 18 whowere dismissed. The appointmentprocess raised concerns as to whetherthe newly appointed justices wereselected in response to political, tribaland/or sectarian interests. Many havealso voiced concerns that the lack oftransparency in the appointment processundermines public confidence in thequality of those named to the bench.

The ICJ fact-finding mission reportanalyses these events with regard tointernational standards on theindependence and accountability of thejudiciary.



Main findings andconclusions

1. Corruption in the administration ofjustice, including in the judiciary, hasbeen a serious impediment to the ruleof law in Kenya.

While corruption is a principalobstacle to the proper functioning ofan independent judiciary in Kenya,anti-corruption measures themselvesmust be implemented in a way thatstrengthens and does not weaken theseparation of powers and theindependence of the judiciary.

2 . The anti-corruption measurestargeting the judiciary were notconducted in accordance withinternational standards. In particular,the individualized public naming ofallegedly corrupt judges andmagistrates before they were notifiedof the accusations against them andgiven an opportunity to mount adefense in fair and impartialproceedings, as well as the pressureexercised to force their resignation,violated principles of due processand security of tenure.

3 . The ICJ hopes that ongoingconstitutional challenges concerningthe Investigative Tribunals,established to try cases of allegedcorruption, can be resolved as soonas possible in order to allow theremaining open cases to proceedwithout undue delay and in a fair andimpartial manner.

4. The ICJ considers that the practiceof appointing temporary and actingjudges does not satisfy standards ofjudicial independence and should bestopped. The ICJ is furtherconcerned about the lack ofsufficiently clear criteria and non-transparent procedures regarding theappointment of judges andmagistrates.

5 . Together with other contentiousdevelopments in the course of the“radical surgery”, such as undueinterferences with the right tofreedom of association andexpression of judges and magistrates,these processes have undermined theindependence and morale of thejudiciary.

It is one of the principal conclusionsof the ICJ that the events of the“radical surgery” demonstrate theurgent need for deeper judicialreforms that have the principalobjective of fully ensuring judicialindependence and accountability inKenya.

6 . Anti-corruption efforts to beeffective should address all actorsinvolved in the administration ofjustice. Reforms need to rectifydeeper institutional shortcomingsthat allow various forms of undueexternal influence. They must befully based on the respect forinternational standards, in particularregarding the independence andaccountability of the judiciary.



7 . In this regard, the ICJ urges theauthorities to adopt as a matter ofpriority the current provisions on theJudicial and Legal System containedin Chapter 13 of the draftConstitution 2004. These provisionswould provide an appropriate andmuch improved framework for anindependent and accountablejudiciary.

The government should considerpassing the provisions of Chapter 13as a separate piece of legislationshould the adoption of the draftConstitution be further delayed.

8. Central to the necessary package ofreforms should be the overhaul of thecompos i t ion , manda te andfunctioning of the existing JudicialService Commission (JSC). Thecomposition and mandate foreseen inthe draft Constitution 2004 wouldprovide the appropriate frameworkf o r a n independent andrepresentative body.

In the meantime, the existing JSCshould fundamentally revise itsprocedures and functioning withinthe context of i ts presentconstitutional mandate. It should inparticular establish clear andtransparent appointment, promotionand dismissal procedures on the firmbasis of international standards. Thecrisis surrounding the “radicalsurgery” also indicated the need foran institutionalized complaintmechanism against corrupt judges

and magistrates established by law.In the meantime, the JSC shouldestablish clear rules and proceduresto receive and process complaintsagainst magis t ra tes . Theseprocedures must satisfy due processrights and be subject to judicialreview.

9 . Judicial independence furtherrequires other important changes toreduce the historical legacy ofexecutive dominance of the judiciary.Changes are recommended inparticular regarding the financial andadministrative autonomy of thejudiciary by de-linking its budget anddecision-making on terms andconditions of service from theordinary public service. The budgetmust furthermore be substantiallyincreased.

1 0 . The ICJ also makes practicalrecommendations on continuingjudicial and legal education formembers both of the judiciary andthe legal profession, to improve legalcompetence, culture and judicial andlegal ethics.

11. The mission found an urgent need toreform the magistracy, to ensuresecurity of tenure on an equal basisto judges and to substantiallyimprove its competencies andworking conditions. Processes ofappointment and promotion anddiscipline must be clearly set out andensure guarantees of fair process.

1 2 . The ICJ urges that the ongoing



reform efforts, including its GJLOSprogramme, do not perpetuateexecutive dominance over thejudiciary and that the judiciaryasserts its participation as an equalpartner. Substantive participationand input by civil societyorganizations will be essential for thesuccess of any such programme.

A deta i led l i s t o f specificrecommendations is set out at the end ofthe report. The ICJ considers that manyof these recommendations can beincorporated into ongoing judicial andlegal reform processes. They shouldguide Kenya's legal community toentrench and institutionalize judicialindependence and accountability as keycomponents of the process ofstrengthening democracy in Kenya, withthe support of the internationalcommunity.



INTRODUCTION

Objectives of the ICJMission to Kenya

From 13-19 December 2004, theInternational Commission of Jurists(ICJ) conducted a high-level mission toKenya in partnership with its KenyanSection (ICJ-Kenya). The mission wasasked to examine the state of judicialindependence and accountability sincethe current government was elected in2002 and to provide concreterecommendations to contribute to thebroader process of judicial reform inKenya.

The ICJ and its Kenyan Section havebeen concerned about the state of thejudiciary in Kenya for many years.Under President Daniel arap Moi, thejudiciary in Kenya was widely known tobe corrupt, its independence andimpartiality effectively compromised.After the political transition in 2002, thenew government prioritized addressingcorruption in the judiciary through theconduct of what it called the "radicalsurgery" which sought to identify andremove corrupt judges. The manner inwhich these anti-corruption measureswere carried out raised serious concernsboth within and outside Kenya regardingcompliance with international standardson judicia l independence andaccountability.

The ICJ mission evaluated theconsequences of this “radical surgery”.The mission also looked at further

developments, such as the role of theexecutive in subsequent judicialappointments and the establishment ofinvestigative tribunals hearing cases ofallegedly corrupt judges. The ICJmission assessed individual anti-corruption measure in the context ofongoing debates in Kenya about long-term constitutional, legal and judicialreforms.

Important issues regarding theindependence and accountability of thejudiciary include judicial appointmentsand promotions, the composition andfunctions of the Judicial ServiceCommission, the status and conditionsof the magistracy and other issuesregarding the relationship of the judiciarywith the executive, such as the degree ofjudicial autonomy over administrativeand financial matters.

This report contains the findings of them i s s i o n a n d i t s p r i n c i p a lrecommendations for reform. Thesefindings and recommendations are basedon international standards on judicialindependence and accountability thatapply to Kenya and on best practicesdrawn from ICJ’s comparativeexperience around the world.

The mission was composed of theHonourable Justice Dr. George W.Kanyeihamba, Justice of the SupremeCourt of Uganda, mission leader1; Mr. 1 Justice Dr. George Kanyeihamba, Justice of theSupreme Court of Uganda; Former Minister ofJustice and Attorney General of Uganda; Senior



Clement Nwankwo, distinguishedpractising lawyer from Nigeria2; Mrs.Cecilia Jimenez, Geneva-based lawyerfrom the Philippines3; and Mr. PhilipKichana, Executive Director of ICJ-Kenya.4

The ICJ mission met with a range of keystakeholders, including members of thejudicial, executive and legislativebranches of the Government of theRepublic Kenya, members of the legalprofession, other judicial officers, theLaw Society of Kenya, academics, themedia, relevant non-governmentalorganizations (NGOs) and thediplomatic corps in Kenya. A full list ofinterlocutors is provided in Annex 1. TheICJ has also consulted relevantlegislation and various past reports onjudicial corruption and reform in Kenya.

Presidential Advisor on International HumanRights Affairs; Professor of Law; Chairman of theLegal Drafting Committee of the ConstituentAssembly that developed the Constitution ofUganda; and author of leading texts onconstitutional and administrative law andgovernment.2 Mr. Clement Nwankwo is a senior advocate fromNigeria; Managing partner at LawMark Partners inAbuja; Member of the International AdvisoryCommittee, Harvard Institute for InternationalDevelopment; Former Executive Director,Constitutional Rights Project in Lagos and Co-founder and National Secretary of the CivilLiberties Organization, Nigeria.3 Mrs Cecilia Jimenez is a Philippine lawyerspecialized in international human rights law;Independent human rights consultant for a range ofinternational organizations; former ProgrammeDirector of the Association for the Prevention ofTorture (APT) and Deputy Secretary General of thePhilippine Alliance of Human Rights Advocates.4 Mr. Philip Kichana is a distinguished senioradvocate at the High Court of Kenya and ExecutiveDirector of the Kenyan Section of the InternationalCommission of Jurists; former Deputy Director ofthe Institute for Education in Democracy, Kenya;Public interest litigation counsel, Public LawInstitute, Kenya.

A list of these reports and documents isprovided in Annex 2. The mission alsoreceived a written submission by theRegistrar’s Chamber of the High Courtof Kenya.

Background

Kenya became independent in 1963. TheConstitution of Kenya was adopted in1964 and provides for the separation ofthe powers of the executive, legislativeand judicial branches of government.

Court Structure

The Kenyan legal system is based onEnglish common law, with significantelements of customary law and Islamiclaw. Chapter IV of the Constitutionentitled "The Judicature", sets out thecourt structure. The Judicature Act(chapter 7, Laws of Kenya) and theMagistrates Courts Act (chapter 10,Laws of Kenya) further elaborate on thestructure. The presiding officers of thedifferent courts are considered judicialauthorities and are designated as Justices,Judges, Magistrates or Kadhis.

Under the Kenyan Constitution, theCourt of Appeal is the highest-levelcourt followed by the High Court.5 TheCourt of Appeal has jurisdiction to hearappeals from the High Court, which inturn has unlimited original jurisdiction incivil, criminal and other matters, as wella s p o w e r s o f constitutionalinterpretation and jurisdiction to hearappeals from subordinate courts. The

5 Constitution of Kenya, section 60 and 64.



Chief Justice is a member of both courts.

The Constitution provides thatparliament may establish subordinatecourts and confer jurisdiction uponthem.6 The Magistrates Courts werecreated as the primary subordinatecourts. They decide on the majority oflegal disputes in the country, bothcriminal and civil.

The Kenyan Constitution formallyrecognizes the “Kadhis Court”, whosejurisdiction extends "to the determinationof questions of Muslim law relating topersonal status, marriage, divorce orinheritance in proceedings in which allthe parties profess the Muslimreligion."7

Specialized judicial divisions have alsobeen created, concerned with commerciallaw, criminal law and family law. In2004, a constitutional division wascreated within the High Court.

Appointment and Removal ofJudges

The chapter in the Constitution on thejudicature also sets out the rules for theappointment,8 tenure9 and removal ofjudges of the Court of Appeal and theHigh Court.10 The Constitutionestablishes the Judicial Service

6 Constitution of Kenya, section 65.7 Constitution of Kenya, section 66, para. 5.8 Constitution of Kenya, section 61 and 64, para.3.9 Constitution of Kenya, section 62, para. 1 and 2,and section 64, para. 3.10 Constitution of Kenya, section 62, para. 3 and 9,and section 64, para3.

Commission (JSC) headed by the ChiefJustice.11 The President has the powerto appoint the Chief Justice on his ownvolition and appoints other members ofthe superior courts upon the advice ofthe JSC.12

Security of tenure is constitutionallyguaranteed for the judges of the Court ofAppeal and the High Court.13 Thesejudges vacate their office only uponretirement age.14 They may be removedwhile in office only on grounds of"inability to perform the functions of hisoffice" or for "misbehavior".15 In any ofthese cases, and upon advice of the ChiefJustice, the President shall appoint atribunal, which shall inquire into thematter and recommend whether the judgein question shall be removed.16 ThePresident can remove the judge onlyupon the recommendation of such atribunal.17

With regard to other judicial officers insubordinate courts (magistrates), theJudicial Service Commission has theauthority to appoint and remove judicialofficers as well as exercise completedisciplinary control over them.18Thisauthority applies to the offices of theRegistrar and Deputy Registrar of the

11 Constitution of Kenya, section 68.12 Constitution of Kenya, section 62, para.1 and 2.13 Constitution of Kenya, section 62 and section64, para.3.14 Constitution of Kenya, section 62, para 1.15 Constitution of Kenya, section 66, para 3.16 Constitution of Kenya, section 62, para 4 and 6.17 Constitution of Kenya, section 62, para 4.18 Constitution of Kenya, section 69.



High Court, the Magistrates, the Kadhisand other subordinate judicial offices.19

Kenya's international legalobligations

Kenya is a State Party to severalinternational human rights treaties,including to the United Nations (UN)International Covenant on Civil andPolitical Rights (ICCPR)20 and theAfrican Charter on Human and Peoples'Rights (ACHPR).21 The ICCPR and theACHPR guarantee equality before thelaw and relevant fair trial rights, such asthe right to be tried by a competent,independent and impartial tribunal, andthe presumption of innocence.

The most comprehensive universalstandards on the independence of thejustice system are set out in the UNBasic Principles on the Independence ofthe Judiciary (1985)22, the BasicPrinciples on the Role of Lawyers(1990)23 and the Guidelines on the Roleof Prosecutors (1990).24

19 Constitution of Kenya, section 69, para.3.20 Date of accession: 01 May 1972 (hereinafterICCPR).21 Date of accession: 23 January 1992 (hereinafterACPHR).22 Adopted by the Seventh UN Congress on thePrevention of Crime and the Treatment of Offendersand endorsed by General Assembly resolutions40/32 and 40/146, 1985 (hereinafter UN BasicPrinciples).23 Adopted by the Eight UN Congress on thePrevention of Crime and the Treatment of Offenders,1990.24 Adopted by the Eight UN Congress on thePrevention of Crime and the Treatment of Offenders,1990.

Many of the guarantees in these threeinstruments are echoed in the Principlesand Guidelines on the Right to a FairTrial and Legal Assistance in Africaadopted by the African Commission onHuman and Peoples’ Rights in 2003.25 Inthe Commonwealth, the Latimer Houseguidelines for the Commonwealth onParliamentary Supremacy and JudicialIndependence (1998)26 and the LatimerHouse Principles on the Accountabilityof and the Relationship between theThree Branches of Government (2003),27

are also applicable to Kenya. TheBangalore Principles on JudicialConduct,28 adopted by an internationalgathering of Chief Justices in 2001, setsout other important standards for theethical conduct of judges. Thesestandards together with further detailsare contained in ICJ’s Guide onInternational Principles on theIndependence and Accountability ofJudges, Lawyers and Prosecutors.29

Kenya has signed and ratified the 2003

25 Adopted as part of the African Commission onHuman and Peoples' Rights' activity report at the2nd Summit and meeting of heads of state of theAfrican Union, 2003.26 Adopted at a meeting of the CommonwealthParliamentary Association, the CommonwealthMagistrates and Judges Association, theCommonwealth Lawyers' Association and theCommonwealth Legal Education Association, 1998.27 Adopted by Law Ministers and endorsed by theCommonwealth Heads of Government Meeting,2003.28 Adopted by the Judicial Group onStrengthening Judicial Integrity, as revised at theRound Table Meeting of Chief Justices, 2002.29 International Commission of Jurists,International Principles on the Independence andAccountability of Judges, Lawyers and Prosecutors,A Practitioners’ Guide, Geneva 2004, available athttp://www.icj.org/news.php3?id_article=3649&lang=en.



UN Convention against Corruption30

and has also signed, but not ratified, the2003 African Union Convention onCombating Corruption.31 Althoughneither of these two treaties has enteredinto force, they provide useful guidanceon the policies accepted by Kenya. TheUN Convention against Corruptioncontains an explicit reference to theimportant relationship between judicialindependence and accountability. Itstipulates:

"Bearing in mind theindependence of the judiciary andits crucial role in combatingcorruption, each State Partyshall, in accordance with thefundamental legal principles of itslegal system and withoutp r e j u d i c e t o judicialindependence, take measures tostrengthen integrity and toprevent opportunities forcorruption among members ofthe judiciary. Such measures mayinclude rules with respect to theconduct of members of thejudiciary."32

30 UN Doc. A/58/422; Ratified by Kenya onDecember 9, 2003.31 Signed on December 17, 2003.32 See Article 11.1.



JUDICIAL INDEPENDENCE AND THE REFORMPROCESS IN KENYA

Overcoming executivedominance over the judiciary

The ICJ believes that the historicaldominance of the executive branch overthe judiciary in Kenya must beunambiguously repudiated in words anddeeds and made no more than a memoryof the past. The legacy has deeplydamaged the separation of powers andthe role of the judiciary as a democraticcheck and balance on executive action. Ithas also gravely undermined the integrityof the judiciary itself.

Principle 1 of UN Basic Principles onthe Independence of the Judiciary reads:

"The independence of the judiciaryshall be guaranteed by the State andenshrined in the Constitution or thelaw of the country. It is the duty of allgovernmental and other institutionsto respect and observe theindependence of the judiciary."

The UN Basic Principles on theIndependence of the Judiciary furtherprovide that neither should there be "anyinappropriate or unwarrantedinterference with the judicial process, norshall judicial decisions by the courts besubject to revision."33 The judiciaryitself is exhorted to assert its judicialindependence in Principle 2:

"The judiciary shall decidematters before them impartially,on the basis of facts and in

33 UN Basic Principles on the Independence of theJudiciary, principle 4.

accordance with the law, withoutany restrictions, improperin f luences , inducements ,p r e s s u r e s , t h r e a t s orinterferences, direct or indirect,from any quarter or for anyreason."

Judicial independence is regarded as arequirement in the dispensation ofjustice:

" The principle of theindependence of the judiciaryentitles and requires the judiciaryto ensure that judicialproceedings are conducted fairlyand that the rights of the partiesare respected."34

The ICJ is convinced that a sustainedprocess of political, judicial andconstitutional reform is necessary to re-establish and institutionalize judicialindependence in Kenya. The reform ofthe judiciary should be carried out withfaithfulness to the principles of judicialindependence. This would involve allbranches of government, with a stronginvolvement of the judiciary itself. Therole of civil society organizations and themedia is indispensable, as publicvigilance and discussion will help toensure accountability and respect for therule of law.

Judicial independence as a centralcomponent of reform

34 UN Basic Principles on the Independence of theJudiciary, principle 6.



Judicial reform in Kenya is an urgenttask in the process of strengtheningdemocracy in the country. This reformmust seek to establish a framework for atruly independent and accountablejudiciary. The considerable commitmentof many stakeholders in the legal andjudicial sector to such reforms ispromising. The ICJ recognizes the valueof on-going initiatives and efforts toreform the judiciary, alongside other,much-needed reforms in the legal sector.

This includes the adoption of a StrategicPlan by the judiciary and the supportprovided by the international communityof donors through the Governance,Justice, Law and Order Sector-wideReform Programme (GJLOS) which co-ordinates judicial and legal reform. It isbased on the government’s anti-corruption plan and includes the reformof the judiciary as one of its priorityinstitutions.35

The role of donors in encouragingirreversible reform is of great importanceto the success of these reforms.36 Atpresent, the programme seems toemphasize mainly administrative reformsand judicial independence should bemade one of its key components.Moreover, its success will depend on thequality and accountability of the reformprocess itself. The ICJ is concerned by 35 Its objective is "to transform and strengthen thesector institutions for efficient, accountable andtransparent administration of justice" in a vision ofa "secure, democratic, just, corruption free andprosperous Kenya".36 Concern among some of the largest donorcountries - such as Norway, the European Union andthe United States of America, on the extent ofcorruption in Kenya, have led to threats to suspendor delay the release of aid in July 2004.Participating donor countries and agencies are:Canada, Denmark, Finland, Germany, theNetherlands, Sweden, Norway, USAID, the EuropeanCommission, UNDP, the World Bank, UN-HABITAT,UNICEF and UNODC.

the apparent dominance of the executivebranch, through the Ministry of Justiceand Constitutional Affairs, in the policyformulation and implementation of thislegal and judicial reform programme. TheICJ mission was given the impressionthat the judiciary participates onlyperipherally in this central process.

Moreover, the ICJ notes that legal civilsociety organizations37 have recentlytemporar i ly wi thdrawn the i rparticipation in the GJLOS reformprogramme.38 Prompted by theresignation of the Permanent Secretaryfor Governance and Ethics, the NGOsstated their concerns for the executive'slack of accountability and the selectivityof the government's anti-corruptionstrategy. Following the NGOwithdrawal, there is an ongoing dialogueon the principles of NGO engagement inthe GJLOS programme. The ICJencourages the resolution of this dialogueto result in the substantive involvementof civil society organisations in bothpolicy and implementation levels in theprogramme.

The recommendations provided in thisreport by the ICJ should guide thesereform processes. They can be integratedinto current reform programmes andrealized even if the current constitutionalreform debate does not progress further.

An improved constitutionalframework for an independentjudiciary

The ongoing constitutional reformprocess that has drawn wide attention in 37 This includes ICJ-Kenya and nine others NGOs.38 Civil Society Statement for the Governance,Justice Law and Order Sector (GJLOS) Workshop onits Medium Term Strategy (MTS) March 2005.



Kenya since 2002 has resulted in the"Draft Constitution of Kenya 2004",adopted by the National ConstitutionalConference in March 2004. However,the Constitutional Review Processappears to have been stalled for politicalreasons, with uncertain prospects as towhether or not the draft will be put tothe people in a plebiscite.

The draft Constitution contains astrengthened Bill of Rights andestablishes a clear separation of powersbetween the three branches ofgovernment, in particular through animproved Chapter 13 on the "Judicialand Legal System." In contrast to thecurrent Constitution, the draft expresslyvests judicial power in the judiciary39

and unambiguously guarantees itsindependence.40 In addition to re-structuring the judiciary, the draftConstitution provides for clear rules andprocedures on appointment, tenure andremoval of judges, in particular throughthe establishment of an independentJudicial Service Commission41 reflectinginternational standards and generalprinciples of judicial independence.

The current draft Constitutioncrystallizes many ideals and ideas thathave evolved in Kenya in the search for atruly democratic society. The draftreflects the substantive participation ofmany sectors of society and governmentin the constitutional reform process. The

39 Draft Constitution of Kenya, section 183, para.(2): "Judicial power vests exclusively in the courtsand tribunals established in accordance with thisConstitution."40 Draft Constitution of Kenya 2004, section 185,para. (1): "In the exercise of judicial power, theJudiciary shall be subject only to this Constitutionand the law and shall not be subject to the controlor direction of any other person or authority."41 Draft Constitution of Kenya of 2004, section200 and 201.

ICJ shares a prevailing sentimentencountered during its mission in Kenya,that many of the structural problemsconnected with judicial independencecould be best resolved if the current draftConstitution were adopted.

The proposed provisions on thejudiciary would serve as an appropriateinstitutional framework for guaranteeingjudicial independence and accountabilityin Kenya and would help to betterprotect human rights.

The ICJ therefore encourages Kenyansto engage democratically andconstructively for the adoption of amuch-improved new Constitution. TheICJ specifically endorses Chapter 13 ofthe current draft.

However, given the delay in making thisconstitutional vision a reality and in lightof the fundamental importance for anindependent judiciary, the ICJ stronglyrecommends that the provisions on theJudicial and Legal System in Chapter 13should be enacted as a separate piece oflegislation, pending eventual completionof the constitutional reform process.



Timeline of the Investigation of Judicial Corruption in Kenya 1998-20031998

The government appoints a Committee headed by retired Appeal Court Judge RichardOtieno Kwach to investigate "judicial rectitude". The Kwach report42 discloses asystematic practice of petty and grand corruption in the Kenyan judiciary, taking theform of "inducing court officials to lose or misplace files, delay trials, judgments andrulings. It notes that there was actual payment of money to judges and magistrates t oinfluence their decisions."43

2002

i) A panel of Commonwealth judges investigating judicial independence in Kenya saysthey are "shocked and dismayed" by the widespread allegations of bribery of judges.44

Acknowledging the Kwach report, the panel provides concrete recommendations ofstrong measures to achieve an independent and accountable judiciary. Many of the Panel'srecommendations on constitutional and legislative reform find their way into the DraftConstitution of Kenya 2004.45

ii) Incoming President Mwai Kibaki acts on his election promise to tackle corruption bycarrying out what he calls “radical surgery” on the judiciary.

2003

i) The President suspends Chief Justice Bernard Chunga and sets up a tribunal t oinvestigate him on charges of corruption. Judge Evans Gicheru is appointed Acting ChiefJustice. Chief Justice Chunga resigns from office in February.

ii) The Acting Chief Justice revives the Judiciary Committee on Reforms andDevelopment. A sub-committee, called the “Integrity and Anti-Corruption Committee”headed by Justice Aaron Ringera, is established in March. Its mandate is to investigate andreport on “the magnitude and level of corruption in the judiciary, its nature and forms,causes and impact on the performance of the judiciary” and to identify corrupt membersof the judiciary.46

iii) In June, President Kibaki appoints eight new High Court judges.

iv) The Ringera Report is published in September and officially transmitted to the ActingChief Justice. Part I of the Ringera Report sets out evidence of corruption, unethicalconduct and other offences at the highest levels. It discusses the nature and forms of bothpetty and grand corruption in the judiciary. The report identifies poor terms andconditions of service amongst the major causes of judicial corruption. Part II of theReport identifies five out of nine Court of Appeal judges (56%), 18 out of 36 High Courtjudges (50%), 82 out of 254 magistrates (32%) and 43 paralegal officers implicated in“judicial corruption, misbehavior or want of ethics.”47

42 Report of the Committee on the Administration of Justice 1998.43 Ibid, page 10.44 Report of the Advisory Panel of Eminent Commonwealth Judicial Experts, Nairobi, “The Kenya Judiciary inthe New Constitution”, Kenya 2002. Published by the Constitutional Review Commission (hereinafter Report ofthe Advisory Panel of Eminent Commonwealth Judicial Experts).45 Draft Constitution of Kenya 2004, section 13.46 Ringera Report, 30 September 2003, p. 147 Ringera Report, p. 46.



v) Parallel to these efforts, the Law Society of Kenya (LSK) appoints a committee t oinvestigate judicial corruption. Its report is completed in October and confidentiallysubmitted to the Acting Chief Justice. It contains the names of a number of judges whoneed to be investigated. The judiciary does not act on the report.

vi) In October, a "List of Shame" is published in the media, naming judges and justicesimplicated in the Ringera Report. The Acting Chief Justice publicly advises them t oresign quietly within two weeks from 6 October, or be suspended without pay andprivileges and face tribunals.

vii) Upon the recommendation of the Chief Justice, President Kibaki appoints twotribunals, one for the Court of Appeal and one for the High Court.48

viii) President Kibaki appoints in October 11 judges in an acting capacity, followed byanother seven judges in December.

ix) The Attorney-General announces in October that implicated magistrates must resignor face the law. The Kenya Magistrates and Judges Association (KMJA) states that itsmembers have not been officially informed of the charges against them.

x) In December, the media announces that six High Court and two Court of Appeal judgeshave decided to face the tribunals. Their salaries are indefinitely withdrawn and reinstatedonly in July 2004.

xi) President Kibaki revokes the tribunals constituted in October and establishes newtribunals,49 with different panel members.

xii) In early November, all 82 magistrates are given until 17 November to respond inwriting to the Judicial Service Commission (JSC) to "show cause" why they should not beremoved.

2004

i) The media reports in January that all implicated magistrates and paralegals have filedtheir defences with the JSC. In mid-March, 50 of the implicated magistrates, followed byanother 20, are "retired" by the JSC in the public interest.

ii) After the reinstatement of 10 implicated magistrates and the promotion of one t oActing High Court Registrar, the Law Society demands to know how they were cleared ofthe charges. The JSC provides no explanation.

iii) Following protests by the KMJA, Chief Justice Evan Gicheru accuses the Associationof acting as a trade union in June and threatens to ban it.

iv) The tribunal for the Court of Appeal judges, which commenced the hearings in April,clears Justice Philip Waki of corruption charges. President Kibaki reinstates him intooffice.

v) In December, President Kibaki confirms the permanent appointment of two Court ofAppeal justices and 16 High Court judges out of 20 judges appointed in an acting capacity.

48 The Kenya Gazette Notices nos. 7280 and 7282, October 2003, Vol. CV.49 The Kenya Gazette Notices nos. 8828 and 8829, December 2003, Vol. CV.



Judicial Independence and the “radical surgery”

Judicial corruption undermines theindependence and effectiveness of thejudiciary. It subverts the judiciary's roleas the guardian of rights and goodgovernance. It erodes the ability of thejudiciary to act as a check and balance onexecutive power and to provide thepeople who come before it with fair andimpartial justice. Fighting corruption inKenya is therefore an essential elementin institutionalizing a democratic andopen society. The struggle for judicialreforms should be seen as part of, andnot in isolation from, the struggle fordemocracy.50

Successive investigations have revealedthat corruption is widespread in Kenya'sjudicial and legal system. For many yearsnow, the judiciary in Kenya has beenperceived as one of the most corruptinstitutions in Kenya.51 Although it hasslightly improved its standing since2002,52 the judiciary in Kenya isreportedly still largely believed to becorrupt.53 This perception wasconfirmed by various accounts in thecourse of the ICJ mission.

Judicial independence goes hand in handwith judicial accountability. Thejudiciary is primarily responsible for

50 Transparency International, Case Study: KenyaOctober 2004.51 Transparency International, Kenya, Indexes2001, 2002, 2003, 2004.52 Transparency International, Kenya, Index 2004.53 See also ICJ-Kenya Strengthening JudicialReforms in Kenya Vol. IX, p. 41.

"the promotion and maintenance of highstandards of judicial conduct."54

International standards emphasize that ajudge should "uphold and exemplifyjudicial independence in both itsindividual and institutional aspects."55

Judicial corruption also violates the rightof the parties to be tried by anindependent and impartial tribunal.

However, the manner in which judicialcorruption is tackled, just as much as theunderlying political will and motivationin dealing with it, will determine whetheror not it is successful and seen to besuccessful. While it is important toensure that persons occupying judicialpositions are disciplined for misconduct,subsequently removed and madeaccountable, anti-corruption measuresmust not compromise judicialindependence, including security oftenure and the right of judges to dueprocess.

Security of tenure and dueprocess in the “radicalsurgery”

The "radical surgery" carried out on thejudiciary was principally focused on theremoval of allegedly corrupt judges andmagistrates and the appointment of newpersons to replace them. The

54 Bangalore Principles on Judicial Conduct,Preamble, paragraph 8.55 Bangalore Principles on Judicial Conduct, Value1: Independence, Principle.



individualized public naming of judgesand magistrates as corrupt, without themhaving been first notified of the chargesand heard, as well as various subsequentforms of pressure to force these judgesand magistrates to resign from office,violated international standards of dueprocess and security of tenure.

Security of tenure is a core element foran independent judiciary and is firmlyguaranteed by international standards.56

Tenure for life or until a mandatoryretirement age is expressly provided bycommonwealth standards57 and by theAfrican Guidelines on the Right to a FairTrial and Legal Assistance,58 whichprovide:

”Judges or members of judicialbodies shall have security oftenure until a mandatoryretirement age or the expiry oftheir term of office.”

It is also guaranteed under the KenyanConstitution for judges of the superiorcourts.59

Security of tenure is not meant toprotect judges per se, but to protect theinterest of the public in the independentand impartial exercise of judicial

56 UN Basic Principles on the Independence of theJudiciary, Conditions of service and tenure,principles 11 and 12.57 Commonwealth Latimer Guidelines 1998 II.1Judicial appointments.58 See principle A.4 (l): "Judges or members ofjudicial bodies shall have security of tenure until amandatory retirement age or the expiry of their termof office."59 Kenyan Constitution, Chapter IV, Part 2, section62.

functions without undue interference.Accordingly, judges and magistrates canbe removed from office only for seriousmisconduct and only following a legallyprescribed procedure. States have a dutyto establish clear grounds for removaland appropriate procedures to this end.The determination as to whether theparticular behavior or the ability of ajudge constitutes a cause for removalmust be taken by an independent andimpartial body pursuant to a fair hearing.Its decision should be subject toindependent review.60

The ICJ mission found that the names ofthe judges and magistrates implicated inthe Ringera Report were published, somewith photographs, without these judgesand magistrates having been officiallyinformed that they were accused ofjudicial corruption. The media reportedthe Acting Chief Justice as having saidthat he had privately spoken to thejudges. Deliberations in the disciplinarytribunals, however, later revealed that thesuspected judges were not notified of theallegations against them before the ChiefJustice made recommendations to thePresident, nor before their namesappeared in the media. In one particularcase, a suspected judge of the Court ofAppeal, whose chambers were locatedbeside those of the Chief Justice, learnedof the allegations against him directlythrough the newspapers. Matters weremade worse, when the Chief Justicepublicly issued a two-week ultimatum,calling on the suspected judges to resignor face trial. The announcement of this 60 UN Basic Principles on the Independence of theJudiciary "Discipline, suspension and removal"principles 17 to 20.



ultimatum was immediately followed bythe withdrawal of benefits and otherprivileges from the judges, which werere-instated only eight to ten monthslater. The Attorney General issued asimilar ultimatum, addressed to theimplicated magistrates. The allegedlycorrupt magistrates received notificationof the charges against them only after theultimatum had expired.

Violations of due process

An important principle in the discipline,suspension and removal of judges isrespect for procedures to notify thejudges of the allegation. The UN BasicPrinciples on the Independence of theJudiciary provide that in cases where acharge or complaint is leveled against ajudge "The examination of the matter atits initial stage shall be kept confidential,unless otherwise requested by thejudge."61 Commonwealth standardsfurther provide that "Discipl inaryprocedures should not include the publicadmonitions of judges. Any admonitionsshould be delivered in private, by thechief judge."62 African standards providethe same level of guarantee.63 Moreover,an implicated judge should have anopportunity to be heard and comment ona complaint at an early stage.64 The lack

61 UN Basic Principles on the Independence of theJudiciary, principle 17.62Commonwealth Latimer 1998, VI AccountabilityMechanisms, I Judicial Accountability a) iii.63 The Principles and Guidelines on the Right to aFair Trial and Legal Assistance in Africa, principleA.4 (q).64 Draft Universal Declaration on the Independenceof Judges (“Singhvi Declaration), principle 26,reprinted in International Commission of Jurists,International Principles on the Independence andAccountability of Judges, Lawyers and Prosecutors,

of notification violated these principles.

Judges and magistrates should beremoved only following fair proceedings.The notion of fair proceedings meansthat disciplinary measures for allegedcorruption, in particular if leading toremoval from office, must not be madewithout the minimum proceduralguarantees provided under human rightslaw, such as the presumption ofinnocence.65 It is recognized underinternational human rights law that thepresumption of innocence requires allpublic authorities not to prejudge theoutcome of proceedings or the guilt ofthe accused, in particular through publicstatements.66 The publication of nameswithout proper process, the issuance ofthe ultimatum and various publicstatements presuming those affected ascorrupted, violated this principle.

Violations of the security of tenure

Security of tenure is not only violated byan official decision to remove a judge ormagistrate from office, but also by otherforms of undue pressure to force judgesto resign from office. The prematurepublic naming and admonition ofindividual judges and magistrates ascorrupt and the subsequent pressure onthem to resign through an ultimatum,constituted such a violation of thesecurity of tenure.

A Practitoners’ Guide, Geneva 2004, page 111 et.seq.65 Article 14, paragraph 2 ICCPR.66 UN Human Rights Committee, General Comment13, par.7, available athttp://www.unhchr/ch/tbs/doc/nsf .



Such undue pressure was amplified bythe immediate withdrawal of salaries andbenefits from judges and magistrates andthe clear warnings that they could retaintheir benefits only if they acceptedretirement. Furthermore, the ultimatumto magistrates to resign or defendthemselves expired long before they wereeven notified of the accusations by theJudicial Service Commission. After theysubmitted written defenses to the JSC,the majority of the magistrates have beenretired ostensibly in the public interest,but without any hearing.

Moreover, the withdrawal of suchbenefits was apparently undertaken inaccordance with the terms and conditionsof service applicable to civil publicservants under the Services CommissionAct. The ICJ believes that it isinappropriate to apply the same Act tojudges and magistrates who belong to aseparate branch of government.Conditions of service of the judiciary,including procedures for suspension anddiscipline, should be prescribed andsecured by a law applicable to thejudiciary alone, separate from theexecutive branch of government.67

Impact on the judiciary

The violation of security of tenure anddue process rights of judges andmagistrates has engendered a low senseof morale among members of thejudiciary and the legal profession. Duringthe mission, some of the judgesconveyed to the ICJ a distinct andcontinuing sense of insecurity about their

67 See also infra at VII, 2.

tenure, which was affecting the way theycarried out their judicial functions. Theydescribed their anxiety over thedevelopments, as well as their regret thatthe way their colleagues on the benchhad been treated was intended tomaximize shame and humiliation of thejudiciary. The possibility that they couldbe next in line to be publicly castigatedand removed from office without dueprocess has lowered the general esprit decorps of the judiciary as a whole.

Moreover, the "radical surgery" on thejudiciary does not appear to havereversed the prevailing loss of confidencein the judiciary by the public. Initially,the new government had receivedoverwhelming and widespread supportin its anti-corruption efforts. However, arecent survey on the impact of thegovernment’s programme of judicialreform and the way it was conducted,revealed that 59% of the respondentsbelieved that the efforts made wouldonly transform the judiciary to a smallextent.68 9% believed that it would notmake any difference, adding that theprogramme was "a political move" aimedto advance the government's popularityand to ensure "that friendlier judges tothe current administration wereappointed."69 In one of the ICJ mission'smeetings, one interlocutor summed upthe situation as follows: "Kenya hasgone through radical transformation buthas remained the same."70

68 ICJ-K "Strengthening Judicial Reforms inKenya" VIX p. 41.69 Ibid.70 Meeting with Senior Advocate.



The role of the investigativetribunals

Disciplinary proceedings that might leadto the removal of a judicial officer shouldinclude appropriate safeguards to ensurefairness.71 These inc lude thecomposition, the conduct of themembers of the tribunals as well as theaccused persons and their counsel andclear procedures that are fairly andobjectively administered.72

In the exercise of this constitutionalauthority73 a n d u p o n therecommendation of the Chief Justice,President Kibaki set up the two tribunalsin October 2003. These tribunals weremandated to investigate the conduct ofthe named judges "including, but notlimited, to the allegations that the saidJudges had been involved in corruption,unethical practices and absence ofintegrity in the performance of theirfunctions of office."74 The tribunals wereg i v e n a u t h o r i t y t o makerecommendations to the President onwhether the accused judges should beremoved. In December 2003, the twotribunals already constituted wererevoked and new ones established withdifferent panel members, but with the

71Commonwealth Latimer Principles 2004 VII-b)Judicial Accountability; see also CommonwealthLatimer Principles 1998 VI-1 (a) on JudicialDiscipline; see also African standards in ThePrinciples and Guidelines on the Right to a FairTrial and Legal Assistance in Africa, principle A. 4(q) and (r ).72 Commonwealth Latimer Principles 2004, ibid.73 Constitution of Kenya section 62, para. 5.74 The Kenya Gazette Notices nos. 7280 and 7282,October 2003, Vol. CV.

same mandate and powers.75 Thesetribunals proceeded to conduct thehearings with effect from April 2004. Bythe time the ICJ mission arrived in thecountry in December 2004, the hearingsbefore the tribunals were suspended dueto legal challenges arising fromconstitutional references filed in the HighCourt. The ICJ was informed that thehearings are set to resume in 2005.

Meanwhile, out of the total of eightjudges who are to face the tribunals, onlyone case, that of Justice Philip Waki ofthe Court of Appeal has been resolved.In October 2004, the tribunal cleared himof the accusations and President Kibakisubsequently reinstated him as a justiceof the Court of Appeal.

The ICJ notes that the President set upthe tribunals in accordance with hisconstitutional authority.76 The ICJacknowledges that those responsible forthe current tribunals have endeavored toestablish procedural and substantiverules of justice and due process.Moreover, the ICJ welcomes theresolution of the case against JusticeWaki and his reinstatement by thePresident, again in accordance with theconstitution.77

During the mission, the ICJ found thatsome concerns have been raisedconcerning the lack of transparency inthe disbanding of the first tribunals andestablishment of new tribunals with new

75 The Kenya Gazette Notices 8828 and 8829, Vol.CV, December 2003.76 Constitution of Kenya, section 62, para. 5.77 Constitution of Kenya, section 62, para. 6.



members. The ICJ notes that the legalchallenges mounted against the tribunalsinvolve issues relating to theirconstitutionality and legality, thevalidity of any rules and proceduresadopted and whether or not theirfindings are subject to judicial review.While some of these issues have beenresolved,78 the remaining challenges tothe t r i buna l s ' l ega l i t y andconstitutionality have significantlyprolonged the life of these tribunals.

The UN Basic Principles on theIndependence of the Judiciary providethat "a charge or complaint madeagainst a judge in his/her judicial andprofessional capacity shall be proceededwith expeditiously and fairly under anappropriate procedure. The judge shallhave a right to a fair hearing."79

Regional standards provide that suchcomplaints shall be processed"promptly, expeditiously and fairly"80

and that s/he shall have guarantees of fairhearing.81

The ICJ believes that if the delaycontinues, the right of the accused judgesto a fair and expeditious hearing may beunder threat. Moreover, the ICJ isconcerned that the delay arising fromthese challenges makes the resolution ofthe cases uncertain and the restoration ofconfidence in the judiciary more difficult.

78 Legal challenges regarding the question ofjudicial review have been resolved.79 UN Basic Principles on the Independence of theJudiciary, principle 17.80 The Principles and Guidelines on the Right to aFair Trial and Legal Assistance in Africa, principleA. 4 (r).81 Ibid, principle A.4 (q).

The ICJ hopes that the High Court willresolve all the legal challenges as soon aspossible. If the tribunals are declaredconstitutional and resume their work, theICJ urges them to resolve the otherpending cases without delay and in a fair,resolute and impartial manner.

The ICJ further believes that it isimportant for these tribunals to createlegal precedents upholding both judicialindependence and accountability inKenya. The results of the Kenyaexperiment may be instructive for therest of East African courts and the restof the continent. The ICJ therefore urgesthe tribunals to ensure the conduct of fairand expeditious hearings with theappropriate guarantees for due process.

Lack of public complaintsprocedures

The problems encountered with the anti-corruption measures illustrate above allthe need to establish clear andtransparent legal processes to addressjudicial corruption in a way thatpreserves judicial independence andintegrity. In this regard it is notable thatthere is no appropriate legal mechanismor procedure that enables the public tolodge complaints in cases of allegedmisconduct of judges and magistrates.

International standards require such amechanism and its procedures to beprescribed by law.82 The need for such amechanism in Kenya is acute. The ICJlearned that although the mandate of the

82 Ibid, principle A. 4 (r).



investigative tribunals is limited to thefindings of the Ringera Report, they havereceived additional complaints againstthose judges presently being considered.The ICJ is of the view that it is properand necessary for the tribunals toconsider these additional complaintsprovided that those affected are accordeddue process and the right to rebut theaccusations. In any event, no othercredible bodies exist in Kenya todaywith which the public can lodgecomplaints against allegedly corruptjudges in the superior courts.

On the other hand, the Judicial ServiceCommission (JSC), has disciplinary,suspension and removal authority overmagistrates and other members of thesubordinate courts83 and can receivecomplaints from the public againstmagistrates. However, the procedures forreceiving complaints, as well as theconduct of disciplinary, suspension andremoval procedures are not clearlyinstitutionalized. A vivid illustration ofthe lack of procedures is reflected in theevents in 2003 when the implicatedmagistrates were issued a similarultimatum to magistrates “to resign orface the law” without being informed ofthe charges leveled against them. It wasonly one month later that thesemagistrates were given the chance todefend themselves in writing to the JSC.

The lack of complaint proceduresbecame particularly evident when theLaw Society of Kenya (LSK) submitteda report in October 2003 to the ChiefJustice, containing yet to be disclosed

83 Constitution of Kenya, section 69, para. 1 and 3.

names of judicial officers who the JSCrecommend to be investigated. So far, noaction has been taken on the report.

In order to assure appropriate judicialaccountability, the public should haverecourse to a mechanism that can receivesubstantiated complaints and investigateagainst both judges and magistrates. TheICJ recommends that a law be enacted toestablish such a permanent mechanism.The law should prescribe grounds forcomplaints for misbehavior andmisconduct against judges andmagistrates. In accordance withstandards on judicial independence andthe right to a fair trial, the law shouldclearly prescribe procedures for handlingthe complaints.84 The establishment ofsuch a mechanism would also facilitateany future disciplinary processes thatmay be initiated by the Chief Justice orother officials.

In the meantime, the Judicial ServiceCommission should promulgate andpublicize clear rules and procedures forreceiving and handling substantiatedcomplaints against allegedly corruptmagistrates and other judicial officers.These procedures should ensuresufficient guarantees for a fair hearingand the expeditious resolution of anycases. The ICJ welcomes that under thedraft Constitution of Kenya, the JSCwould have the authority to receive andact on such complaints against bothjudges and magistrates.85

84 The Principles and Guidelines on the Right to aFair Trial and Legal Assistance in Africa, principleA. 4 (r).85 Draft Constitution of Kenya 2004, section 196and 201.



Undue interference withfreedom of association andexpression

Statements by the Chief Justice in thecourse of the “radical surgery”,threatening to ban Kenya’s Magistratesand Judges Association, constitute anundue interference with the rights tofreedom of expression and association ofjudges and magistrates.

Judges enjoy the same fundamentalfreedoms as other individuals, includingthe rights to freedom of expression andassociation.86 These rights require thatjudges and magistrates conductthemselves so "as to preserve the dignityof their office and the impartiality andindependence of the judiciary."87 Due totheir fundamental role in theadministration of justice, freedom ofexpression and association areparticularly important. Associations ofjudges play an essential role in upholdingthe independence of the judiciary and therule of law. They bring judges togetherand allow them to organize to defendtheir independence and that of thejudicial profession more effectively.88

The UN Basic Principles on theIndependence of the Judiciary recognizeboth the general right to association and 86 See in particular article 19 and 22 ICCPR; UNBasic Principles on the Independence of theJudiciary, principle 8.87 UN Basic Principles on the Independence of theJudiciary, principle 8.88 See also, International Commission of Jurists,International Principles on the Independence andAccountability of the Judges, Lawyers andProsecutors, A Practitioner’s Guide, Geneva 2004,at 37 et seq.

expression as well as the specific role ofjudges association. Principle 9 reads:

"Judges shall be free to form andjoin associations of judges andother organizations to representtheir interests, to promoteprofessional training and top r o t e c t t h e i r judicialindependence.89

Various other international documentscontain equivalent provisions confirmingthis right and the role of judgesassociations in defending the interests oftheir members.90 The right to associationof judges in Kenya extends beyondnational associations, to the participationof Kenyan judges and magistrates in theEast Africa Magistrates’ and Judges'Association, as well as theCommonwealth Magistrates’ andJudges’ Association (CMJA).

In March 2004, following publication ofthe names of the implicated judges andmagistrates, the Kenya Magistrates’ andJudges’ Association (KMJA) protestedagainst the way its members weretreated. The KMJA also conducted a

89 UN Basic Principles on the Independence of theJudiciary, principle 9.90 See Bangalore Principles, Article 4.13: "A judgemay form or join associations of judges orparticipate in other organizations representing theinterests of judges." See Universal Charter of aJudge, Article 12: "The right of a judge to belong toa professional association must be recognized inorder to permit the judges to be consulted,especially concerning the application of theirstatutes, ethical and otherwise, and the means ofjustice, and in order to permit them to defend theirlegitimate interests." See The Principles andGuidelines on the Right to a Fair Trial and LegalAssistance in Africa, principle A. 4 (s): "Judicialofficers are entitled to freedom of expression,belief, association and assembly."



"purple ribbon" campaign to mark itsprotest. The ICJ considers that such aprotest does not undermine the dignity,nor the impartiality and independence, ofjudicial office. It constitutes a legitimateexercise of the right of the KMJA toprotect the interests of its members. InJune, the Chief Justice publiclythreatened to ban the KMJA, accusing itof acting as a trade union.91 The threat toban the organization undermines the rightof association of judges and magistrates.

The ICJ urges the Chief Justice of Kenyato revisit his statement in light ofinternational standards and encourageshim to actively support the effectiveexe rc i s e o f t he r i gh t of

association by members of the judiciary.

The ICJ is further concerned aboutevents following the ICJ mission, inwhich magistrates conducted astrike/boycott to demonstrate againsttheir poor working conditions for whichthey later received interdictions from theJudicial Service Commission. In light ofthe circumstance, the ICJ is concernedabout the excessiveness of theinterdictions. The ICJ notes that ameeting between the Chief Justice andthe KMJA was scheduled to discussconditions of work of the magistracy,which may also resolve these cases.92

91 The Nation, June 12, 2004 "CJ's threat to banjudges' association" by Jillo Kadida; see also TheStandard, June 12, 2004 "CJ threatens to banjudges' union."92 The Nation, March 16, 2005 "Now strikingmagistrates suspended" and the East AfricanStandard March 14, 2005 "Magistrates down toolsas national strike looms".

In light of the ongoing difficulties, theICJ considers that a regular dialoguebetween the Chief Justice, the JudicialService Commission and the KMJAwould allow an exchange of views andwould facilitate the resolution of anyemerging disputes between the parties.The ICJ also suggests that within thejudicial administration and the JudicialService Commission, persons should beclearly designated to be responsible formatters related to relationships with theKMJA.

Reinforcing ethical behaviorof the judiciary

An important way to strengthen judicialethics is the promulgation andenforcement of a code of ethics andconduct. Commonwealth standards urgeeach judiciary to adopt such a code.93

The Bangalore Principles of JudicialConduct provides guidance on thecontent of such codes.

The Kenyan judiciary has taken somesteps to eradicate judicial corruption andto entrench judicial ethics, through thepromulgation of a Judicial Service Codeof Conduct and Ethics. This Code wasadopted in February 2005. This marks awelcome and necessary step towards theaccountability of judges. The Codecontains guidelines for the properconduct of judicial officers and otherprovisions for strengthening ethics andintegrity in the judiciary.94

93 Commonwealth Latimer Principles 2004VI)Ethical Governance, and Commonwealth LatimerGuidelines 1998 V.1 Judicial Ethics (a).94 Written submission, Registrar's Chambers, HighCourt of Kenya, 16 December 2004, page 4.



The ICJ is encouraged by the ChiefJustice's statement that compliance byjudges and magistrates with the code ofconduct will be strictly observed.95

Implementation and monitoring ofcompliance with the Code of Ethicsshould entail the establishment of clearcontrol procedures to ensure judicialaccountability. During the mission, theICJ was informed that "judicial staff"prepare and submit annual wealthdeclaration forms "as a method ofdetection of corrupt practices."96 TheChief Justice has also said that in 2005the Integrity and Anti-CorruptionCommittee of the judiciary will bereconstituted,

expanded and upgraded to the status of astanding committee.97

The ICJ commends any efforts to reformthe judiciary from within, including theadoption and implementation of theJudicial Service Code. Members of thejudiciary should strictly comply with thenew code. The ICJ recommends that thenew code be periodically reviewed toensure it complies with internationalprinciples of judicial ethics set out in theBangalore Principles on JudicialConduct. It further recommends that anyreconstituted Judicial Integrity and Anti-Corruption Committee, or other bodyentrusted to supervise implementation of

95 Speech of the Chief Justice, February 27, 2005,Mombasa during the induction of new magistrates.96 Written submission, Registrar's Chambers, HighCourt of Kenya, 16 December 2004, page 4.97 Speech of the Chief Justice, February 27, 2005,Mombasa during the induction of new magistrates.

the code, should establish transparentand fair rules and procedures.

Role of the media and civilsociety in judicialaccountability

In addition to the establishment ofmechanisms and proper procedures,legitimate public criticism of judicialperformance98 by the press99 and civilsociety100 is essential to ensure judicialaccountability.

The ICJ was informed that somemembers of the judiciary had threatenedcontempt proceedings against membersof the media covering issues on theadministration of justice.101 The judicialsystem should not be used to curtail theright to information and expression, norshould criminal law or contempt of courtproceedings be used to restrict legitimatecriticism of the performance of judicialfunctions.102 The ICJ draws theattention of the judiciary and the mediato the Madrid Principles on theRelationship between the Media andJudicial Independence, adopted under theauspices of the InternationalCommission of Jurists. The Principles

98 Commonwealth Latimer Principles 1998 VI)Accountabi l i ty Mechanisms 1 . JudicialAccountability (b) Public Criticism (i).99 Commonwealth Latimer Principles 2004 IX)Oversight of government (b).100 Commonwealth Latimer Principles 2004 X)Civil society.101 ICJ Mission Meeting.102 Commonwealth Latimer Principles 2004 VII)Accountabil i ty Mechanisms (b) JudicialAccountability.



provide useful guidance on therelationship between an independentjudiciary and media.103

Comprehensive efforts tofight corruption

The ICJ mission found that in theaftermath of the "radical surgery",members of the legal profession continueto voice serious concerns about theindependence and efficiency of theadministration of justice in the country.While acknowledging that the efforts torid the judiciary of persistent practicesof corruption were, and are, needed,there is genuine concern that the way itwas conducted raises questions about theunderlying motives.This perception reflects a majorshortcoming of the reform process,namely that the principles of judicialindependence and accountabilityprovided by accepted international andCommonwealth standards104 did notguide the reform efforts. They appearnot to have been regarded as priorities bythe government of President Kibaki. TheICJ recommends that the anti-corruption

103 The Madrid Principles on the Relationshipbetween the Media and Judicial Independence,adopted by legal experts and media representativesin 1994. UN document E/CN.4/1994/NGO/36. ThePrinciples provide inter alia that the freedom of themedia is integral to freedom of expression thatobliges the judges to recognise and give effect tothis freedom. Subject to reasonable restrictions, tointernational human rights, such as the right to afair trial and the presumption of innocence, theright of the media to comment on theadministration of justice, should not be curtailed.The values of a free press and fair trial are essentialto a democracy and neither can be realised at theexpense of the other.104 In particular the UN Basic Principles on theIndependence of the Judiciary and the LatimerHouse - Commonwealth Guidelines 1998 and 2002.

campaign of the government be enhancedby making the respect and guarantee ofjudicial independence a priority whileassuring judicial accountability.

In the experience of the ICJ any credibleanti-corruption strategy involving thejudicial system must be comprehensiveby tackling all branches of government,and in particular all administrative andjudicial actors involved in theadministration of justice. While membersof the legal profession and some of theirclients have been victims of judicialcorruption, the ICJ mission foundsufficient evidence to conclude thatmany practicing advocates have beenwilling participants in corruption. TheICJ urges the Law Society of Kenya(LSK) and legal civil societyorganizations to assess the state ofcorruption within the legal professionthrough an independent committee setup for this purpose on the initiative ofthe LSK. The committee should have themandate to make recommendations onhow to prevent such practices and otherunethical behavior and on how toimprove relevant legislation105 or enactnew statutory provisions to betterregulate professional conduct ofadvocates in Kenya.

Moreover, the ICJ finds that the removalof corrupt judges, without carrying outequally pressing, simultaneous and inter-related reforms in other sectors of thelegal system, including the executivebranch, will not yield the expectedresults. The ICJ concurs with the

105 In particular the Advocates Act and the LawSociety of Kenya Act.



conclusion that limiting reform judgesand magistrates without addressing theother parts of the governmentalmachinery "creates opportunities for thecorrupt to re-invent themselves and tolodge themselves in the new system."106

106 Transparency International, Case Study onKenya, October 2004.



APPOINTMENTS AND PROMOTIONS IN THEJUDICIARY

The appointment by the government ofnew and temporary judges to replacethose dismissed or suspended as a resultof the anti-corruption drive raisesconsiderable concerns with regard toinstitutional independence. Thoseconcerns relate to the quality and criteriaof appointment, the lack of ethnicdiversity and gender balance inappointments and the temporary natureof appointments.

Qualification criteria forappointment and promotion

The ICJ mission learned with concernthat significant parts of the legalprofession were dismayed that followingthe release of the Ringera report personswith inappropriate qualifications andexperience were appointed to judicialoffice. Subsequently, members of thelegal profession and civil societyorganizations criticized the "non-judicial"nature of some decisions and the lowquality of judicial reasoning rendered bysome of these newly appointedjudges.107

While the Constitution of Kenya setsout the minimum qualifications for

107 Maina, Wachira "The NARC Government'sPerformance in the Fight against Corruption:Challenges and Priorities for the Years Ahead",Transparency International, December 2004.

members of the Higher Courts108 and theJudicature Act for Magistrates providessome criteria for magistrates, thesenominal qualifications are insufficient toensure the appointment of appropriatelyqualified and experienced candidates. Therequired minimum qualifications are sosketchy that a person who does notposses a university degree could beappointed as a magistrate.109 The ICJnotes that the criteria for judicialappointments have been upgraded in thetext of the draft Constitution, requiringadditional years of professionalexperience, intellectual ability andintegrity.110

The ICJ mission was also informed thatthe Chief Justice intends to resolve someof these concerns about appointmentsand promotions by recommending thefuture enactment of a Judicial ServiceBill. This Bill would provide for a"strengthened institutional framework,an expanded Judicial ServiceCommission and appropriate policyguidelines for the recruitment, promotionand deployment practices in theJudiciary."111

The criteria for appointment and 108 Constitution of Kenya, section 61, para. 3.109 Muciimi Mbaka, Judicial Appointments inKenya, in: ICJ-Kenya Report on Judicial Reform inKenya 1998-2003, Nairobi 2004.110 Draft Kenya Constitution 2004, ChapterThirteen on Judicial and Legal System, section 194.111 Written submission by the Registrar'sChamber, High Court of Kenya,16 December 2004.



promotion should follow internationalstandards, which provide that selectionof individuals for the judiciary should bebased on integrity, ability andappropriate qualifications in law.112

There should exist “objective andtransparent criteria based on properprofessional qualifications”113 whichcould include moral probity, intellectualability as demonstrated by academicqualifications, performance and legalwritings and experience, appreciation andpractice of the law as demonstrated bythe quality of previous judicial decisions.

These same principles should governinternal promotions to higher positionsof judges, magistrates and other judicialofficers and applied to appointments ofthe Chief Justice. The ICJ mission heardallegations that a good number ofprevious appointments, includingappointments to the highest judicialposts of the land, are said to havebenefited persons who had notdistinguished themselves either in thelegal profession or in the judiciary.

The ICJ therefore recommends that inaddition to the nominal qualificationsrequired by law, other criteria should beset out for candidates for judicialpositions. These criteria must includethose relevant to academic qualifications,integrity, ability and experience, andother objective and transparent criteriabased on proper professional

112 UN Basic Principles on the Independence of theJudiciary, principle 10; see also The Principles andGuidelines on the Right to a Fair Trial and LegalAssistance in Africa, principle A. 4 (i).113 Universal Charter of the Judge Article 9,Appointment.

qualifications.

The ICJ recommends that the adoptionof clear, transparent and objective criteriabe applied to appointments andpromotions of all members of thejudiciary, including the position of ChiefJustice.

Ethnic and genderrepresentation in thejudiciary

Many analysts, the media and civilsociety organizations in Kenya continueto believe that appointments to publicoffice in Kenya are driven by patronagebased on ethnic and personalconstituencies, which provide incentivesfor corruption.114 The ICJ mission wasrepeatedly alerted that appointments tothe judiciary are not exempt from thisgeneral practice.

In relation to the series of judicialappointments in 2003/2004, the ICJreceived statements describing theseappoin tments as the "ethnictribalisation" of the Judiciary."115 Thecritics illustrate their claim by pointingout that the majority of the judgesappointed in the first phase ofappointments came from ethnic groupsin the Central and Eastern parts ofKenya, known as the region of MountKenya, to the disadvantage of othertribes in Kenya.116

114 See Transparency International Case Study -Kenya, presented to the GJLOS Reform Programmemeeting, October 2004.115 ICJ Meeting with Senior Advocate.116 Before the judicial suspension, there were only



An additional concern relates to the factthat there are far too few womenoccupying judicial positions. There is ahigher, but still insufficient, ratio ofwomen in the magistracy. The ICJ alsolearned that women holding judicialpositions are usually assigned to thespecialized family courts. The executive,the Judicial Service Commission or thejudiciary do not appear to have anypolicy to actively increase the number ofqualified women in the judiciary.

Given the context in Kenya where ethnicconsiderations and gender imbalancescontinue to persist, the ICJ is convincedthat judicial appointments should followinternational standards. The rule of non-discrimination, as provided by treatylaw117 and the UN Basic Principles onthe Independence of the Judiciary118

should a lways guide judicialappointment. The imperative to removediscrimination in judicial appointments isrecognized by international standards,which state that judicial appointmentsshould be made "on merit withappropriate provision for theprogressive removal of gender imbalancesand of other historic factors ofdiscrimination."119 This principle hasbeen strengthened in the CommonwealthLatimer Principles 2004 providing for"progressive attainment" of gender

three High Court Judges from the Kikuyu tribe. Thefirst set of appointments in 2003 included 16 HighJudges from the same tribe.117 See articles 2, par.3 and 26 ICCPR.118 UN Basic Principles on the Independence of theJudiciary, principle 10.119 Commonwealth Latimer Guidelines 1998 II)Preserving Judicial Independence, I. Judicialappointments.

equity and the removal of otherdiscriminatory factors.120

The ICJ recommends that the judiciaryadopt a clear policy for the progressiveattainment of gender equity and removalof discriminatory factors in all judicialappointments in the country.

Appointment of acting judges

The ICJ considers that judicialappointments made between 2003 and2004 of new judges in an acting capacity,or on contract, do not satisfyinternational standards.121 At the time ofthe visit of the ICJ mission PresidentKibaki had just confirmed a majority ofthese as permanent judges in theirrespective offices.

The ICJ mission was informed that theappointment of these judges on contractor in an acting capacity was merely atemporary step in the revitalization ofthe judiciary and should be understoodwithin the context of the anti-corruptioncampaign in the country. The ICJmission was informed that the system ofsuch appointments "has providedopportunity to the judges todemonstrate, and the Judicial ServiceCommission to verify, their integrity,ability and fitness to hold judicial office.This would ensure that only those whopossess those qualities are confirmed tothe office."122 The fact that not all of the

120 Commonwealth Latimer Principles 2004 IV)Independence of the Judiciary.121 These appointments were criticized by the legalprofession and civil society organizations asundermining security of tenure.122 Written submission of the Registrar'sChambers, High Court of Kenya, 16 December 2004.



appointments in an acting capacity wereconfirmed in December 2004, reflect thisbelief.

While the Commonwealth Principlesenvisage the possibility of contractappointments, this is allowed only as anexception to the general rule and issubject to special considerations.123

Fixed term contracts usually cannot bereconciled with the principle of securityof tenure of judges, because a judge doesnot know whether unpopular decisionsare going to rebound upon him when thetime comes for the contract to berenewed.124 The more recent AfricanGuidelines therefore clearly prohibit thepractice of fixed term judicialcontracts.125 In order to guarantee thesecurity of tenure of judges, judicialappointments should be permanent.

The ICJ does not accept the argumentthat this practice is a useful way toverify judicial performance, and couldtherefore be repeated. Even within thecontext of the anti-corruption campaign,the ICJ notes that these appointmentshave been criticized by anti-corruptioncampaigners as “likely to hurt ratherthan to fight against corruption”precisely because of the lack of securityof tenure.126 The ICJ is concerned that 123 Commonwealth Latimer Guidelines1998, II)Preserving Judicial Independence, I. JudicialAppointments.124 1999 Symposium "Independence of theJudiciary and Judicial Accountability: The LatimerHouse Guidelines and other recent CommonwealthTrends". University of London.125 Principles and Guidelines on the Right to a FairTrial and Legal Assistance in Africa, Principle A,paras. 4 (l), (m) and (n) 3.126 See paper presented by Wachira Maina, “TheNARC Governments performance in the fight

the appointment of judges on contract orin an acting capacity violates judicialsecurity of tenure and in practice risksundermining the independence of thejudiciary.

The ICJ recommends that thegovernment discontinue the appointmentof judges on a contractual or acting basis,as well as any other appointmentpractices that threaten the security oftenure of judges and magistrates.

Transparent and effectiveconsultations

There were some attempts by theJudicial Service Commission in 2003 and2004 to consult with a wider circle ofl e g a l s t a k e h o l d e r s aboutr e c o m m e n d a t i o n s f o r judicialappointments. The ICJ was informedthat the International Federation ofWomen Lawyers - Kenya (FIDA) andthe Law Society of Kenya were asked tonominate candidates from their ranks forthe vacant judicial positions. Althoughaccounts differed127 about how thenominations were dealt with, suchconsultations were a radical departurefrom past, more secretive practices. TheICJ believes that such relations betweenthe bench and the Bar should continueand be strengthened by being formalizedin legislation.

against corruption: challenges and priorities for theyears ahead”, a presentation to the TransparencyInternational – Kenya Open Public Forum,December 10, 2004.127 Meetings with LSK, FIDA; see also MuciimiMbaka "Judicial Appointments in Kenya" in: ICJ-Kenya Report, January 2004.



International and commonwealthstandards provide that the process ofselection should safeguard againstappointments for improper motives.128

In order to do this, the process should bepublic, open and transparent.129

Vacancies should be publicly announcedand deadlines for nominations set. TheICJ mission noted that while vacanciesfor the positions of magistrates areadvertised, the positions for judges arenot. Open advertisement for thepositions of judges would be in keepingwith current international standards130

and would be a fair and transparentmethod of appointment.

It is recommended that clear proceduresbe established for making nominationsand for vetting by different legalstakeholders, such as the Law Society ofKenya, based on previously establishedguidelines. The legal profession,particularly the Law Society of Kenya,should itself set clear criteria forassessing candidates nominated for highoffice in the judiciary.

128 UN Basic Principles on the Independence of theJudiciary, principle 10.129 Commonwealth Latimer Principles 2004 IV)Independence of the Judiciary (a).130 Commonwealth Latimer Guidelines 1998 II)Preserving Judicial Independence 1. Judicialappointments.



STRENGTHENING THE JUDICIAL SERVICECOMMISSION

The reform of the JudicialService Commission

Judicial Service Commissions play asignificant institutional role with regardto the appointment and removal ofjudicial officers and are instrumental inensuring full judicial independence andaccountability.131 The composition,functions and practices of the presentJudicial Service Commission (JSC) inKenya require urgent reform.

The main function of the JSC is theappointment, discipline and removal ofthe Registrar of the High Court,magistrates of subordinate courts andKadhi courts.132 It has only a limitedadvisory role with regard to the selectionof judges to the higher courts, who areappointed by the President.133 Themajority of the members of the JSC aredirect presidential appointees, includingthe Chief Justice as chairman, theAttorney-General and the Chairman ofthe Public Service Commission.134

131 Commonwealth Latimer Guidelines 1998 II.1Judicial appointments: Jurisidiction should havean appropriate independent process in place forjudicial appointments. Where no independentsystem already exists, appointments should bemade by a judicial services commission(established by the Constitution or by statute) orby an appropriate officer of state acting on therecommendation of such as commission.132 Constitution of Kenya, section 69.133 Constitution of Kenya, section 61.134 Constitution of Kenya, section 68.

Several high-level reports frominternational experts135 and Kenyanorganizations136 have pointed out thatthe composition, functions and practicesof the JSC do not satisfy standardsguaranteeing independence from theexecutive. The ICJ shares theseassessments, in particular as regards theconclusion of the Eminent Panel ofCommonwealth Jurists that the presentmode of appointment of judges is noteffective and suffers from a lack oftransparency.137 Removal proceedingsduring the anti-corruption drive and theappointments of new judges andmagistrates underline these concerns.The current JSC should be restructuredin order to ensure that it is independentand not subject to the direction andcontrol of any other person or authorityin the exercise of its functions.138

The Judicial ServiceCommission under the draftConstitution

Most of the recommendations of otherprevious expert missions regarding theestablishment of a fully independent JSChave been integrated into the text of the

135 Report of the Eminent Panel of CommonwealthJurists 2002.136 See, for example, the ICJ-Kenya report onsymposium on “Strengthening judicial reforms inKenya” January 2004.137 Report of the Eminent Panel ofCommonwealth Jurists 2002. page 35.138 Ibid.



draft Constitution of Kenya 2004.139

Under international standards,membership in an independent JSCshould be truly representative.140Underthe draft Constitution the JSC would bemore representative because it wouldinclude judges and magistrates elected bytheir own constituencies, representativesfrom the legal profession andacademia.141 The draft constitution alsoprovides that the chair shall be theelected member from the Supreme Court,not necessarily the Chief Justice asprovided in the present Constitution.Only the three judges representing eachof the three courts of the Judicature andthe Attorney-General would be directPresidential appointees.

The functions of the proposed JSC havealso been expanded in the draftConstitution to ensure it has an activerole in securing judicial independence andaccountability in Kenya. Under the draftConstitution, the JSC would haves t a tu to ry powers t o maker e c o m m e n d a t i o n s o n judicialappointments to the superior courts142

to the appointing authority, namely thePresident, who would be required to actin accordance with this advice. The JSCwould provide advice on theestablishment of disciplinary tribunals

139 Draft Constitution of Kenya 2004, ChapterThirteen on Judicial and Legal System, Section 193and 201.140 Commonwealth Latimer Guidelines 1998 IIJudicial Independence 1. Judicial appointments.141 Draft Kenya Constitution 2004 ChapterThirteen Judicial and Legal Service, articles 200and 201.142 Draft Kenya Constitution 2004, ChapterThirteen Judicial and Legal Service, section 193.

for judges in the superior courts143 andretain disciplinary control overmagistrates and judicial officers of thesubordinate courts.144 Finally, the JSCwould perform additional advisoryfunctions in the maintenance andstrengthening of the independence of thejudiciary.145

The proposed changes in thecomposition and functions wouldcontribute positively to creating anindependent JSC that would be betterequipped to ensure an independentjudiciary.

Improvement under thecurrent constitutionalframework

Important improvements to the JSCshould and can be implemented in theinterim under the present constitutionalframework.

Under the current Constitution the JSChas an advisory role in the appointmentof judges of the superior courts, with theexception of the Chief Justice.146 TheICJ mission did not have enoughinformation to assess how the JSCcarries out this advisory role in practice.

The functions of the JSC should be

143 Draft Kenya Constitution2004, ChapterThirteen Judicial and Legal Service, articles 201.144 Draft Kenya Constitution2004, ChapterThirteen Judicial and Legal Service, articles 201.145 Draft Kenya Constitution2004, ChapterThirteen Judicial and Legal Service, articles 201.146 Constitution of Kenya, section, para. 2.



expanded so it is able to give advise onother issues affect ing judicialindependence and accountability, forexample by making suggestions andr e c o m m e n d a t i o n s r e g a r d i n gremuneration, appointment, disciplineand removal of all judicial officers. TheJSC should itself consider how toestablish proper public complaintsprocess relating to members of thejudiciary over which ii has currentlyd i sc ip l i na ry au tho r i t y . In theimplementation of these expandedfunctions, the institutionalization of amore transparent consultative process,involving major legal stakeholders suchas the legal profession, the Law Societyof Kenya, FIDA and the faculties andschools of law of Kenya would be apositive step in the furtherance ofjudicial independence.

In comparison with its counterparts inthe other branches of government,namely the Public Service Commissionand the Parliamentary ServiceCommission, the JSC suffers from theabsence of any fully functioning supportadministration. In order to improve thework of the current JSC, it should haveits own full-time secretariat and its ownbudget allocation. This would also ensurethat the JSC's administrative supportsystem is separate from the judicialadministration over which the JSC hasmonitoring and disciplining powers.

The ICJ was informed that under the“Judiciary Strategic Plan 2005 – 2008”, aproposed Judicial Service Bill wouldexpand an independent JSC.147 Such a

147 Written submission of the Registrar's

Judicial Service Bill should incorporatethe above recommendations, to enhancethe credibility and quality of anindependent JSC.

Chambers, High Court of Kenya December 16, 2004,page 7.



THE MAGISTRATES AND THE MAGISTRATESCOURTS

Many of the discussions in Kenya focuson the state of judicial independence ofthe higher courts. Insufficient attentionhas been paid to the state of themagistracy in Kenya, which handlesmore than 90% of the country's caseloadand is the first court of resort for mostpeople coming before the courts toresolve their problems or who facecriminal charges. It is imperative toupgrade the status and workingconditions of Kenyan magistrates in linewith international standards.

Under Kenyan law magistrates exercisejudicial authority and are part of thejudicial branch of government.148 Underinternational standards they are subjectto the same standards on judicialindependence and accountability asjudges.149 A Chief Justice of India oncesaid that a judge, "even at a low level, isentitled to as much freedom in hisfunctioning as the chief justice".150 Thisis possible only if magistrates areconsidered to be full judicial officers withall necessary guarantees of judicialindependence.

148 Judicature Act.149 Bangalore Principles 2002 "Definition: 'Judge'means any person exercising judicial power,however designated."150 Verma, J.S., "Ensuring Accountability and theRule of Law: the Role of the Judiciary", NationalEndowment for Democracy, Conference January2 0 0 3 , I n d i a , a v a i l a b l e athttp//www.ned.org/acdg/inaugural/session3.html.

Security of tenure

Under the Constitution and laws ofKenya magistrates do not enjoy the sameprotection of their independence asjudges. While security of tenure isexplicitly guaranteed for the judges of thesuperior courts, this is not the case withregard to the magistrates. Moreover,magistrates can be dismissed withoutrecourse to a tribunal, with only theopportunity to defend themselves beforethe JSC.

The ICJ recommends that security oftenure should be expressly guaranteed tomagistrates in Kenya. The ICJ furtherrecommends that all other principles ofjudicial independence and accountabilityapply to magistrates and all those whoexercise judicial authority.

Appointment and promotionof magistrates

The reforms that the ICJ recommendsfor superior courts relating toappointment and promotion, should alsoapply to magistrates and magistratescourts, including predetermined criteriabased on appropriate qualifications, atransparent process of recruitment,selection and promotion.

Under the Kenyan Constitution, the JSC



is designated as the principal institutionwith authority to appoint, exercisedisciplinary powers over, and removefrom office, magistrates and othersubordinate judicial officials.151

Currently however, the exercise of thesepowers lack clearly defined andtransparent criteria and procedures.152

The ICJ mission noted that whilevacancies in the magistrates courts andminimum qualifications required by lawfor applicants are publicly advertised,the actual process in selection andrecruitment is not transparent.153 TheICJ mission also noted the absence ofboth clear criteria for the promotion ofmagistrates and of an institutionalizedprocess to evaluate their performance.Moreover, the practice of promotingmagistrates to positions in the superiorcourts of Kenya is becoming rare.154

The ICJ recommends that magistrates berecruited and promoted on the basis ofboth professional qualifications andtransparent criteria based on moralintegrity, work experience and merit.Clear criteria and a system of periodicevaluation that would encourage legalcareer development among themagistrates, including promotion tohigher judicial positions, should beestablished. This should include theremoval of gender and other imbalancesin the representation of the judiciaryunder non-discr iminatory and

151 Constitution of Kenya, Chapter IV, Part 3,section 69, para. 1and 3.152 Meeting with legal civil society organisations.153 Latimer 2004 IV) Judicial Independence.154 Judges in the superior courts in Kenya areincreasingly appointed from persons in legalpractice.

transparent policies that recognize merit.

Working conditions of themagistracy

The ICJ mission learned with concernabout the poor working conditions ofmagistrates, especially in comparisonwith those enjoyed by judges of thehigher courts. According to internationalstandards the law should secure adequateremuneration, pensions and otherconditions of service.155 Commonwealthstandards underline that appropriatesalaries and benefits are essential to theproper functioning of the judiciary.156

While salaries and other benefits havebeen regularly increased for judges of theCourt of Appeal and the High Court,157

there have been no equivalentimprovements for the magistrates andother judicial officers. The mission wasinformed that the backlog of cases isprecarious. Three years ago, the numberof judges was significantly increased butnot the number of magistrates, thusfurther contributing to the backlog ofcases at the magistrate level.

These have had dire consequences. In

155 See in particular Principles and Guidelines onthe Right to a Fair Trial and Legal assistance inAfrica, A.4.(m), which reads : «The tenure, adequaterenumeration, housing, transport, conditions ofphysical and social security, age of retirement,disciplinary and recourse mechanisms and otherconditions of service shall be prescribed andguaranteed by law ». See also UN Basic Principleson the Independence of the Judiciary, principle 11. 156 Commonwealth Latimer Guidelines II.2Funding.157 The ICJ Mission was informed thatremuneration, benefits and pensions have improvedfor the judges of the superior courts.



March 2004, 32 lawyers in privatepractice turned down government offersof appointments as magistrates becauseof poor working conditions inmagistrates courts. This was followed bythreats and protests by lawyers indifferent parts of the country against theshortage of magistrates and judicial staff.In 2005, magistrates from two areaswent on strike as a protest against theirlow salaries and poor workingconditions. At the time of thepublication of this report, the KenyaMagistrates’ and Judges’ Associationhas been seeking, and was granted, adialogue with the Chief Justice on theimprovement of their work conditions,including their salaries.

The ICJ recommends that theremuneration and benefits of magistratesshould be substantially upgraded. TheICJ notes that the present Strategic Planof the Judiciary 2005-8 identifies thatthere are 245 vacant positions in themagistracy.158 The ICJ recommends thatthese open positions be filled as a matterof urgency.

Structure of the magistratescourts

Unlike other Commonwealth countriessuch as Uganda and Tanzania, Kenyadoes not have a geographical andhierarchical system of magistrates withappellate cadres. In Kenya, whether anygiven magistrates court is a ChiefMagistrate’s, Senior Magistrate’s orResident Magistrate’s court depends onwhether the individual magistrate posted 158 Strategic Plan of the Judiciary, page 9.

in that location has the necessary rank orseniority. This is cumbersome forlitigants and lawyers in Kenya andmakes it more difficult for the public toaccess the necessary courts.

The ICJ recommends that the countryshould be divided into magisterial areaswith resident magistrates of appropriatelevels stationed in each area.

Judicial education andtraining

The ICJ mission found that the two-week training courses currently requiredin Kenya for new magistrates isinsufficient to prepare them for theirnew positions or to enable themeventually to manage cases and deliverdecisions with adequate judicialreasoning. There is no clear policy oncontinuing judicial education of bothjudges and magistrates.

The ICJ recommends that the trainingrequired for new magistrates be reviewedand upgraded. A continuing judicialeducation programme for magistratesshould also be institutionalized andresources should be regularly andadequately provided.159

159 See also the discussions on judicial educationVIII, 1.



FINANCIAL AND ADMINISTRATIVE AUTONOMYOF THE JUDICIARY

Executive dominance

The role of the judiciary inindependently and impartially upholdingthe rule of law is based on the clearseparation of powers and the principleof checks and balances. In its variousmeetings in Kenya, the ICJ wasconsistently confronted with a dominantperception that the judiciary is tooclosely related to, or identified, with theexecutive branch.

The belief persists that the judiciaryoperates de facto as a part of executivebranch, reflected in the dominance of theMinistry of Justice and the Presidency.This prevalent perception derives fromthe long history of executive control ofthe judiciary since 1963. This issupported by previous survey findingsthat the executive branch continues topose a danger to the independence of thejudiciary160 and that political interferenceis the chief obstacle to judicial reform.161

This perception has been buttressed bythe respective roles played by PresidentKibaki in the “radical surgery” of thejudiciary.

Many of the above recommendations,such as those regarding the adoption of 160 ICJ Kenya Report "Strengthening JudicialReforms in Kenya" Volume IX., p. 39161 Ibid. page 38. Up to 80% of the surveyrespondents indicated that the Ministry of Justiceposes a real danger to the independence of thejudiciary.

Chapter 13 of the draft Constitution2004, the reform of the JSC, the revisionof appointment and dismissal proceduresor the recommendations on themagistracy, are essential elements in amuch needed comprehensive policy toenhance the independence of thejudiciary. In addition, the ICJ believesthat the institutionalization of judicialindependence from the executive branchrequires stronger financial andadministrative autonomy.

Financial autonomy andsufficient resources

The funding of the judiciary, as aseparate and distinct branch of the state,is an essential component of judicialindependence. It is a state's duty toprovide adequate resources to enable thejudiciary to properly perform itsfunctions to the highest standards162 andwithout undue constraints that mayhamper independence.163 Furthermore,the allocation of such funds should notbe used as a means of exercisingimproper control over the judiciary.164

162 Commonwealth Latimer Guidelines 1998 II)Judicial Independence 2. Funding; UN BasicPrinciples on the Independence of the Judiciary,principle 7; Principles and Guidelines on the Rightto a Fair Trial and Legal assistance in Africa, A.4.(v).163 Commonwealth Latimer Principles 2004 IV)Judicial Independence (b).164 Commonwealth Latimer Guidelines 1998 II)Judicial Independence 2. Funding.



The ICJ mission was informed thatefforts are under-way to de-link thebudget of the judiciary from theTreasury,165 which currently controlsboth the allocation and management offunds. The ICJ endorses such de-linkageas it would greatly improve the ability ofthe judiciary to function impartially andindependently.

The current 1% budget allocation to theKenya Judiciary is inadequate andshould therefore be appropriately andsubstantially increased. The fundingshould meet fully the requirements ofadequate salaries and benefits of judges,magistrates and judiciary support staff,and provide the necessary resources forcapital development, stationery andequipment.166

Financial independence of the judiciaryincludes the ability of the judiciary tomanage its own funds according to itsprogrammes and activities. The ICJrecommends that the judiciary establish acompetent, efficient and transparentfinancial management system. It shouldupgrade its judicial staff managerialcapabilities through appropriate trainingand the employment of qualified staff.The judiciary should set up thenecessary internal structures forsupervision and auditing. The ICJ alsorecommends that the final financialaccounts of the judiciary may besubjected to an independent and

165 Closing Speech by the Honorable Chief JusticeEvans of Kenya, Judges' Colloquium 2004Mombasa, page 4.166 Commonwealth Latimer Guidelines 1998 II)Judicial Independence 2. Funding.

competent oversight auditing body.



Administrative independence

Presently, judicial s t a f f areadministratively part of the publicservice. The Public Service Commissiondetermines the terms and conditions ofservice of judges and magistrates. TheICJ mission learned that the Kenyanjudiciary has taken pro-active steps forstatutory recognition that they are anautonomous self-accounting institution,de-linked from the Civil Service.167 Thisde-linkage of judicial staff from thepublic service is a necessary componentof the administrative separation of thejudiciary from the executive branch.

The ICJ reiterates the view that as amatter of principle, an independentbody, such as the JSC under the draftConstitution, should be responsible forrecommending the terms and conditionsof service of the judges, magistrates andother judicial officers and the judiciarysupport staff, including salaries andbenefits.168 In addition, the terms ofoffice, and other retirement benefits forjudges, magistrates, other judicial officersand the judiciary support staff should beadequately secured by law.169

167 Written submission by the Registrar'sChambers, High Court of Kenya, 16 December 2004.168 Commonwealth Latimer Guidelines 1998 II)Judicial Independence 2. Funding.169 Principles and Guidelines on the Right to a FairTrial and Legal Assistance in Africa A.4.(m).



ADDITIONAL COMPONENTS OF JUDICIAL ANDLEGAL REFORM

The ICJ commends efforts to put intoplace a Judicial Strategic Plan tostrengthen judicial independence.170 ThisStrategic Plan was launched in March2005. The ICJ believes that this is animportant step to institutionalize judicialindependence and accountability.

Judicial education andtraining

If judges are to ensure fair judicialproceedings and to uphold the rule oflaw they must have demonstrated legalcompetence and knowledge. Thus,modern international standards onjudicial independence provide that a“culture of judicial education” should bedeveloped.171

The ICJ mission noted with regret thatthe general attitude towards continuingjudicial education is often negative. Onejudge expressed great surprise that theICJ mission was proposing continuingjudicial education and refresher coursesfor judges and magistrates. In hisopinion, once you are appointed judge,magistrate or judicial officer, you knowabout justice and adjudication and do notneed re-training. His attitude is notunique in Kenya.

170 Closing Speech by the Chief Justice, JudgesColloquium, August 2004, Mombasa.171 Commonwealth Latimer Guidelines 1998 IV)Judicial Independence, 3. Training.

The ICJ is encouraged by the currentefforts of the Chief Justice to institutecontinuing judicial education in theKenyan judiciary and by his exhortationto fellow judges to "improve ourknowledge of the principles of Law,systems of delivery and methods ofaccountability."172 The active revival ofthe Judiciary Training Committee, whichwill formulate judicial education policiesand the establishment of a sub-committee specifically for "lower cadrestaff" of the judiciary173 are importantinstitutional developments that needfurther encouragement and resources.

Standards on judicial integrity andaccountability emphasize the importanceof taking steps to maintain and enhancethe knowledge, skills and personalqualities of judges, taking advantage forthis purpose of training and otherfacilities.174 Judges should keepthemselves informed about relevantdevelopments of international law,including human rights.175 Judicialtraining should include the "teaching oflaw, judicial skills and the social context

172 Speech of the Honorable Chief Justice ofKenya, Judges' Colloquium 2004, Mombasa.173 Report of the Judges' Colloquium, August2004, Mombasa.174 Bangalore Principles on Judicial Conduct2002, value 6.3.175 Bangalore Principles on Judicial Conduct2002, value 6.4.



including ethnic and gender issues." 176

Some of the reluctance of judges inKenya to undergo judicial training oreven to attend specialized legal seminarsseem to stem from the fact that theseevents are not directly under judicialcontrol. The ICJ stresses that suchtraining should be "organized, systematicand ongoing and under the control of anadequately funded judicial body."177 TheICJ is also convinced that a regularprogramme of continuing judicialeducation should be open to all membersof the judiciary and support staff basedon identified needs. However, while it isprovided that judicial officers shouldgeneral ly control curr iculum,international standards provide thatjudicial officers should have theassistance of lay specialists.178 Thisnecessitates collaboration with externalspecialists as resource persons.Furthermore, for a judge to be keptinformed of relevant developments,particularly in international law,specialized outside seminars may benecessary and even essential.

Efforts should also be made to enablejudges and magistrates to develop newfields of legal specialization. Access tospecialized judicial training should beavailable to all members of the judiciary,with clear and established criteria forselection. Giving the opportunity formembers of the Kenyan judiciary to

176 Commonwealth Latimer Guidelines 1998 IV)Judicial Independence, 3. Training.177 Commonwealth Latimer Guidelines 1998 IV)Judicial Independence, 3. Training.178 Commonwealth Latimer Guidelines 1998 IV)Judicial Independence, 3. Training.

specialize in certain areas of law willprovide a sound incentive for theprogressive development of legalresearch and judicial interpretation.

Substantive training courses on case andfinancial management, as well as newlegal developments, should be requiredfor new judges and magistrates assumingtheir positions, as well as courses incomputer technology. Budget allowancesallocated for training expenses, libraryacquisitions and computer costs shouldbe increased and extended to magistrates.

Moreover, subject to the properperformance of judicial duties, judges andmagistrates should also be allowed to"write, lecture, teach and participate inactivities concerning the law, the legalsystem, and the administration ofjustice."179 These are activities that notonly enhance the competence of thejudges and magistrates, but also facilitatethe judiciary's accessibility to otherstakeholders in the legal profession aswell as to the interested public.

Courses in judicial education should beoffered to practising lawyers, as part ofthe development training of the legalprofession.180 The ICJ recommends thatthe newly established compulsoryContinuing Legal Education programmeof the Law Society be further developedto include collaborative seminars withthe judiciary.

179 Bangalore Principles on Judicial Conduct2002, value 4.11.1180 Commonwealth Latimer Guidelines 1998 IV)Judicial Independence, 3. Training.



Public perceptions and accessto justice

Judicial independence will not lead tojustice if the public cannot easily accesscour ts . S tandards on judicialindependence expressly provide thatpeople should have easy and unhinderedaccess to courts, particularly to enforcetheir fundamental rights.181 Barriers toaccess to justice are not only physical,but also often economic, social,psychological and cultural.

The ICJ mission found that there is aprevailing perception that courts inKenya are not easily "accessible" to thepublic, to the extent that up to 80% ofrespondents in a survey stated thatCourts were "inaccessible".182 Inaddition to being seen as corrupt, thecourt system is perceived to bediscriminatory against the poor andmarginalized sectors of Kenyansociety.183 The current image of theKenyan judiciary is that of reclusion andisolation.

Human rights law guarantees victims theright to a remedy in a fair and non-discriminatory manner.184 The currentKenyan Constitution guarantees the rightof everyone to access the High Court forviolations under the Bill of Rights.185 Inorder to broaden access to justice in 181 Commonwealth Latimer Guidelines 1998 I)Parliament and Judiciary, para. 6.182 ICJ-Kenya report "Strengthening JudicialReforms in Kenya" Vol. IX, p. 11183 Legal Resource Foundation, "Balancing theScales" Executive Summary pp. vii - viii.184 Articles 2, 14 and 26 ICCPR.185 Constitution of Kenya, section 84.

Kenya, many efforts in recent years havebeen undertaken to establish alternativestructures that would enable the publicto access justice. This includes the smallclaims courts, the community justicesystem and the use of alternative disputeresolution. These initiatives wouldenhance people's access to justice



and should be appropriately recognizedand supported.

However, the ICJ recommends that theformal structures and procedures of thejudiciary should be reformed equally sothat the public can exercise a moreeffective right to access justice throughcourts of law. The ICJ was informed thatthe judiciary is currently undertakingwide consultations to enable theimplementation of a specific legislativeproject to simplify the rules ofprocedure. The ICJ welcomes thisinitiative as an important step toimprove access to justice. Wideconsultations should be held among thedifferent legal organizations and thepublic at large.

Moreover, the ICJ mission learned ofconcern about severe restrictions onphysical access to court buildings andproceedings. Courts are barricaded andpeople with legitimate business at thecourts have difficulties entering thecourts. The general public is largelyexcluded from attending court hearings,which severely impedes the right of thepublic to be present and the right of theparties to a public trial.186 The ICJrecommends that the judiciary ensuresthe physical accessibility of the public toall courts in Kenya.

The ICJ further recommends that thejudiciary and legal service organizationsundertake a comprehensive study on theimprovement of access to justice in theKenyan courts.

186 As guaranteed under article 14, paragraph 1ICCPR.



CONCLUSIONS AND RECOMMENDATIONS

Deep-seated patterns of corruption inthe administration of justice have been aserious impediment to the rule of law inKenya. The ICJ has noted variousefforts by the government, the judiciaryand civil society to eliminate thispractice.

The so-called “radical surgery” carriedout on the judiciary led to the removaland resignation of allegedly corruptjudges and magistrates following thepolitical changes in 2002. However, themanner in which the anti-corruptionmeasures were conducted violatedprinciples of due process and security oftenure. The mission found that theimplementation of the policy andsubsequent events have in practiceundermined, rather than strengthened,the independence of the judiciary inKenya.

The controversies and difficultiessurrounding the removal of judges andmagistrates underline a broader need forcomprehensive judicial and legal reformsin Kenya to establish an independent andaccountable judiciary. It will be essentialto establish clear and transparent criteriaand procedures for the appointment anddismissal of judges and magistrates.Furthermore, the ICJ mission found thatbroader aspects of judicial independenceand accountability must be addressed inorder to strengthen the judiciary. Legaland judicial reform as well as necessaryanti-corruption policies must be

comprehensive, addressing all actors inthe administration of justice.

The following paragraphs set out theICJ’s recommendation fo r theestablishment of an independent andaccountable judiciary in Kenya.

Constitutional framework ofthe judiciary

1. The ICJ endorses Chapter 13 of theDraft Constitution of Kenya 2004,on the Judicial and Legal System,which would serve as an appropriateframework for an independentjudiciary and the protection ofhuman rights by the judiciary. TheICJ urges that this be adopted as partof a much needed new KenyanConstitution.

2 . In case of further delays in theadoption of the Draft Constitution2004, the current draft provisions onthe Judicial and Legal System(Chapter 13) should be introduced asa separate parliamentary bill andenacted into law as soon as possible.

Judicial independence andaccountability

3 . The anti-corruption programmeshould consist of simultaneous andinter-related reforms in all parts ofthe administration of justice inKenya. This must include the



executive branch as well as the legalprofession.

4. The Law Society of Kenya and legalcivil society organizations shouldassess the state of corruption withinthe legal profession through anindependent committee with thepower to make recommendations onhow to prevent such practices in thefuture.

5 . The pr inc ip les of judicialindependence and accountabilityshould be strictly observed in thediscipline and removal of judges andmagistrates. The process ofdisciplining and removing judges andmagistrates should scrupulouslycomply with the principle ofsecurity of tenure and due process.

6 . An independent complaintsprocedure that can receivecomplaints on alleged misconductand unethical behavior of judges andmagistrates and other judicial staffshould be established. The publicshould have access to such complaintprocedure.

7 . The procedures for complaintsagainst judges and magistrates andrelevant disciplinary proceduresshould be regulated by law. In themeantime the Judicial ServiceCommission should promulgate clearrules and procedures for receivingand handling substant iatedcomplaints against magistrates andother judicial officers under theirdisciplinary control. The proceduremust ensure guarantees of a fair

hearing and expeditious resolution ofany complaints, with recourse tojudicial appeal.

8 . The High Court should resolve assoon as possible the legal challengesmounted against the tribunalscurrently hearing the cases of thejudges from the High Court and theCourt of Appeal. Once thesetribunals resume their work, theyshould resolve these cases withoutundue delay and in a fair, resoluteand impartial manner.

9. The judiciary is accountable to publicscrutiny, including the media andcivil society. Contempt of courtproceedings should not be usedagainst the legitimate criticism by themedia. The Madrid Principles on theRelationship between the Media andJudicial Independence should guidethe relationship between anindependent judiciary and the press.

On judicial ethics and theright to freedom ofassociation

10. Governmental and judicial authoritiesshould fully respect the right ofjudges to freedom of association andexpression in accordance withinternational human rights law andguidelines on judicial independence.They should refrain from statementsthreatening the exercise of theserights.

11. To prevent further confrontation, a



regular dialogue should be establishedbetween the Chief Justice, theJudicial Service Commission and theKenyan Judges’ and Magistrates’Association.

12. The members of the judiciary shouldstrictly observe the new JudicialService Code of Conduct and Ethics.The Code should be regularlyreviewed to ensure that it satisfiesthe Bangalore Principles on JudicialConduct.

13. The judiciary should set up clearimplementation mechanisms tomonitor and ensure compliance withthe code. Such mechanism shouldestablish clear and transparent rulesand procedures.

14. The judiciary, the executive arm ofthe administration of justice and thelegal profession should develop aneducational programme that willinstitutionalize awareness andcompliance with judicial ethics andaccountability.

On appointment andpromotion in the judiciary

1 5 . The appointment and promotionprocedures for both judges andmagistrates need to be improved toallow clear, transparent and objectivecriteria to be applied and verified forall judicial positions, including theposition of Chief Justice.

16. In addition to nominal qualifications

required by law, additional criteriashould be required of candidates forjudicial positions. These shouldinclude those pertaining to academicqualifications, integrity, ability andexperience, and other objectivecriteria based on proper professionalqualifications. These criteria shouldbe applied to all appointments andpromotions, including the position ofthe Chief Justice.

17. The judiciary should adopt a policyfor the progressive attainment ofgender equi ty and removediscriminatory factors in all judicialappointments in the country.

18. Clear procedures in the nomination,selection and appointment ofmembers of the judiciary should beestablished. All judicial vacancies,including those of the higher courts,should be advertised with cleardeadlines for application. Aconsultative process must be set upwhere other stakeholders, such as theLegal Society of Kenya and otherorganizations, may providenominations according to previouslyset criteria. A "vetting procedure" isrecommended th rough thepublication of final nominations thatwould invite any substantiatedsubmissions from the public andother interested parties.

19 . Appointments as acting judges ormagistrates or on a temporary basiscompromise international standardson the independence of the judiciary.Any such practice should beimmediately discontinued.



On the Judicial ServiceCommission

2 0 . The Judicial Service Commissionshould be reformed as a matter ofurgency with respect to itscompos i t ion , manda te andfunctioning.

21. Composition and mandate foreseenin the draft Constitution 2004 wouldprovide for a much improved andappropriate framework for a trulyindependent and representativebody. It should serve as the modelfor any efforts to improve thefunctioning and composition of anindependent JSC.

22. The current JSC should take a moreactive role in strengthening judicialindependence through its advisoryrole on the appointment of judges, aswell as by making recommendationson remuneration, appointment,discipline and removal of all judicialofficers.

2 3 . The JSC should establish, inconsultation with major legals takeholders , a consultativeprocedure in the implementation ofthese expanded functions, includingclear roles of stakeholders in vettingproposed judicial appointments.

24 . The JSC should establish a clearpublic complaint mechanism andshould establish transparent and fairstandards and procedures fordisciplinary proceedings against

magistrates and other persons overwhom it exercises disciplinarycontrol.

2 5 . A fully functioning supportadministration in the form of asecretariat, independent from othercivil service institutions, wouldenhance the capacity of the JSC tofulfill its functions. The secretariatshould be provided with sufficientresources for its operations.



On the Magistracy

26. The law should expressly guaranteesecurity of tenure for magistrates inKenya. Magistrates should be treatedas full judicial authorities and allother principles of judicialindependence and accountability,including tenure; qualifications andappointments, discipline and removaland judicial ethics should apply tomagistrates as they apply to judges.

27. The work conditions of magistratesshould be adequately enhanced withregard to remuneration, promotionand training. The two-week trainingrequired for new magistrates shouldbe reviewed and upgraded. Thejudiciary should adopt a clearprogramme to upgrade the training ofnew magistrates, and with the co-operation of parliament, to re-structure the magistracy in to areasand render them more accessible tothe public. The number ofmagistrates should be increased inline with the Strategic Plan of theJudiciary, urgently filling the 245open positions.

Administrative and financialautonomy

2 8 . The judiciary and the executivebranches of government must fullyuphold the strict separation ofpowers and implement the guidelineson the relationships between thedifferent branches of government asprovided by the CommonwealthLatimer Principles.

2 9 . The financial autonomy of thejudiciary needs to be increased inorder to ensure its independence. Thebudget allocation and management offunds should be de-linked from theTreasury and the executive.

3 0 . The budget allocation for thejudiciary must be substantiallyincreased from its current 1% of thestate budget to meet the requirementsfor human resources, capitaldevelopment and equipmentnecessary for judicial operations inthe administration of justice. Thejudiciary should also develop a soundprogramme for i ts financialmanagement that will be accountableto an independent and competentauditing body.

31. The Kenyan judiciary should be de-linked through statutory enactmentfrom the mainstream public servicecommission determining terms andconditions of judicial service ofjudges and magistrates.

On judicial education

32. Continuing judicial education shouldbe developed on an institutional andlong-term basis. It should be requiredfor all members of the judiciary in thecountry. Appropriate training forjudicial support staff should also bemade available.

33 . The continuing judicial programmeshould be guided by theCommonwealth Latimer Principles



and the Bangalore Principles ofJudicial Conduct in respect of itsobjectives, organization and control,and funding.

34. Any continuing judicial programmeshould support opportunities for thejudiciary to develop new fields oflegal specialization. Members of thejudiciary should be able to attendspecialized legal seminars for thispurpose.

35. Judges and magistrates should beencouraged to engage in externalactivities related to writing, lecturingand participation in other activitiesconcern ing the l aw andadministration of justice.

On access to justice

36. Access to justice with regard to theformal justice system needs to befurther improved. To this end, thejudiciary and legal serviceorganizations should considerundertaking a comprehensive studyon the improvement of access tojustice in Kenya.

3 7 . Physical accessibility for legalprofessionals and the public isinsufficient and needs to be greatlyimproved to ensure compliance withobligations under international humanrights law, such as the right to apublic trial.

38. Current efforts to simplify the rulesof procedures are welcome andshould involve the widestconsultation possible among the legal

stakeholders and the interestedpublic.



On the judicial reformprocess

39. The judicial and legal reform processshould have, as its principalobjective, the entrenchment ofjudicial independence and judicialaccountability in all aspects of thereform process, and be undertaken inaccordance with international andregional standards.

40. The Government, Justice, Law andOrder Sector Reform Programme(GJLOS) should systematicallyincorporate accepted internationaland regional principles on judicialindependence and accountability inits support for judicial reform inKenya.

41. The co-ordinated approach currentlyadopted by the GJLOS programmeshould not perpetuate the currentdominance of the executive branchover the judiciary. The judiciaryshould be provided an equal platformin decision-making in the programme.

42. The participation of civil societyorganizations should be moresubstantive and not relegated to theoperational phases of the programmeas service providers. Civil societyorganizations should remainindependent voices and vigilantmonitors in the promotion of the ruleof law in the country.



Annex 1:List of persons met (formally and informally) by the ICJ mission

Court of Appeal, KenyaThe Honorable Justice Riaga S.C OmoloThe Honorable Justice Emmanuel O'KubasuThe Honorable Justice Philip TunoiMr. Justice (rtd.) A. B. Shah

Ministry of Justice and Constitutional AffairsThe Honorable Minister Kiraitu Murungi, Minister for Justice and ConstitutionalAffairsMs. Dorothy N. Angote, Permanent SecretaryMr. Gichira Kibara, Director for Legal Affairs

Tribunal Investigating the Conduct of Court of Appeal JudgesThe Honorable Justice (rtd.) Akilano AkiwumiMr. Mbuthi Gathenji, Assisting CounselMr. Chesie Wachanga (researcher)

Senior AdvocatesMr. Mutula Kilonzo, Senior Counsel (also a nominated Member of Parliament of theOfficial Opposition Party KANU and its Shadow Minister for Justice andConstitutional Affairs)Mr. George O. Oraro, Senior Counsel

AdvocatesMs. Agnes K. Murgor

Attorney General’s ChambersMr. Philip Murgor, Deputy Public ProsecutorMs. Muthoni Kimani, Chief Litigation Counsel

Kenya Law Reform CommissionMr. Kathurima Minoti, Chairman

East Africa Law Society (EALS)Mr. Don Deya, Executive Director

Law Society of Kenya (LSK)Mr. Patrick O. Kiage, LSK Council MemberMs. Amina A. Bashir (Deputy Secretary)Ms. Grace W. Maingi (Deputy Secretary)Mr. Omwanza Ombati (Programme Officer)



Diplomatic Corps and DonorsMr. Gerd Bossen, Konrad Adenauer Stiftung (Resident Representative)Ms. Margeurite Garling, British High Commission (First Secretary)Ms. Sue Lane, British High Commission (Senior Governance Adviser)Mr. Arthur Mattli, Embassy of Switzerland (Deputy Head of Mission, Counsellor) andco-chair of Limid-P (group of donor countries)

International Commission of Jurists - Kenya SectionMr. Kathurima M’Inoti, ICJ CommissionerMr. Amollo Otiende, ChairpersonMr. Wilfred Nderitu, vice chairmanMr. Kanyi Kimondo, SecretaryMr. Elijah Ireri, TreasurerMs. Mukami Mwangi, Council MemberMr. Kanyi Gachoka, Council MemberMr. Albert Kamunde, Council Member

Other Civil Society OrganisationsMs. Jane Onyango, Federation of Women Lawyers - Kenya / FIDA (ExecutiveDirector)Ms. Mary Njeri Gichuru, Kenya Tuitakayo (4Cs) - Citizens Coalition forConstitutional Change (Deputy Executive Director)Mr. Haron M. Ndubi, Kituo Cha Sheria - Legal Advice Centre (Executive Director)Ms. Jedida Wakonyo Warihui, Legal Resources Foundation Kenya (ExecutiveDirector)Ms. Gladwel Otieno, Transparency International Kenya (Executive Director)Mr. Mwalimu Mati, Transparency International Kenya (Deputy Executive Director)Mr. Jack Muriuki, Transparency International Kenya (Programme Officer, Advocacyand Coalition Building)Mr. Stephen Riech Community Service OrderMs. Miriam Kahiga, Amnesty International, Nairobi Office

MediaMr. Tom Mshindi, Standard Group Limited (Group Managing Director/CEO)

Academic institutionsProf. W. Kulundu-Bitonye, Kenya School of Law (Principal)



Annex 2:Bibliography

Advisory Panel of Eminent Commonwealth Judicial Experts - Report of Mission; Nairobi,Kenya, May 2002.

Amnesty International "Kenya: A human rights memorandum to the new Government";London, United Kingdom, February 2003. AI Index: AFR 32/002/2003

Amnesty International "Kenya" in the 2004 Annual Report http://www.amnesty.org

Gicheru, Mr. Justice J.E. "Corruption, Independence and Accountability of the Judiciary"Keynote Address for the opening of the Judges' Colloquium, 2004; Mombasa, Kenya, August2004.

Gicheru, Mr. Justice J.E. "Speech at the Closing of the Judges' Colloquium, 2004; Mombasa,Kenya, August 2004.

Gondi, James "International Standards of Judicial Conduct: Freedom of Association - TheKenya Predicament" in ICJ-Kenya Issue 3; Kenya, April 2004.

International Commission of Jurists - Kenya Strengthening Judicial Reforms in Kenya: TheAnti-Corruption Court in Kenya Volume IX; Kenya, December 2004.

International Commission of Jurists - Kenya "Removal Process of Judges in Kenya" - Reportof a Symposium; Nairobi, Kenya, November 2004.

International Commission of Jurists - Kenya "Memorandum to the Chief Justice: Suggestionsfor an Independent, Efficient and Accountable and Transparent Judiciary"; Kenya, 2004.

International Commission of Jurists - Kenya "Judicial Reform and Administration of Justicein Kenya: The Way Forward" Report of a Symposium on the Judiciary; Nairobi, Kenya,January 2004.

International Commission of Jurists - Kenya "Constitution Memorandum submitted to theConstitution of Kenya Review Commission" pp. 36 to 45 on the Judiciary

Kelly, Justice F.B. William "Free Press v. Free Trial: Judicial-Media Interaction" presentedduring the Ninth International Conference; Santa Monica, California, United States ofAmerica, 1995.

Judges' Colloquium Report; Mombasa, Kenya, August 2004.

Kamunde, Albert "Restructuring and Strengthening Kenya's Judicial Service Commission" inJudicial Reform in Kenya, 1998-2003, Sihanya and Kichana (editors); InternationalCommission of Jurists - Kenya, No. 1 in the Judiciary Watch Series; Nairobi, Kenya, 2004.

Legal Resources Foundation (K) Balancing the Scales: A Report on Seeking Access to Justicein Kenya; Kenya, 2004.

Maina, Wachira "The NARC Government's Performance in the Fight against Corruption:Challenges and Priorities for the Years Ahead" A Presentation to the Transparency



International Kenya Open Public Forum; Kenya, December 2004.

Mbaka, Muciimi "Judicial Appointments in Kenya" in Judicial Reform in Kenya, 1998-2003,Sihanya and Kichana (editors); International Commission of Jurists - Kenya, No. 1 in theJudiciary Watch Series; Nairobi, Kenya, 2004.

Mwenesi, Stephen M. "Triggering Judicial Independence and Accountability: The Case of theCommonwealth Guidelines"; Power-point presentation.

Slinn, Peter "Independence of the Judiciary and Judicial Accountability: The Latimer HouseGuidelines and other Recent Commonwealth Trends" Report of the Joint Colloquium held atLatimer House; June 1999, United Kingdom.

Transparency International, "Kenya" October 2004.

Transparency International (Kenya Chapter), "Corruption and Judicial Independence inKenya" draft report; 2004.

United States of America State Department Report 2004: Kenya

Verma, J.S. "Ensuring Accountability and the Rule of Law: the Role of the Judiciary" inReport of the Inaugural Conference of the Asian Centre for Democratic Governance; India.http://www.ned.org/acdg/inaugural/session3.html

Relevant Websites

International Commission of Jurists http://www.icj.org

International Commission of Jurists - Kenya Section http://www.icj-kenya.org



List of International Standards on Judicial Independence and JudicialAccountability

The Bangalore Principle of Judicial Conduct, adopted by the Judicial Group onStrengthening Judicial Integrity, revised at the Round Table Meeting of Chief Justices; theNetherlands, November 2002.

The Commonwealth (Latimer House) Principles on the Accountability of and theRelationship between the Three Branches of Government, agreed by Law Ministers andendorsed by the Commonwealth Heads of Government Meeting; Nigeria, 2003.

The Commonwealth (Latimer House) Guidelines on Parliamentary Supremacy andJudicial Independence, adopted by the Commonwealth Parliamentary Association, theCommonwealth Magistrates' and Judges' Association, the Commonwealth Lawyers'Association and the Commonwealth Legal Education Association; United Kingdom, 1998.

The Draft Constitution of Kenya 2004, Chapter Thirteen "Judicial and Legal System",adopted by the National Constitutional Conference; Kenya, March 2004.

The Madrid Principles on the Relationship between the Media and Judicial Independence,adopted by legal experts and media representatives; Spain, 1994.

The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa,adopted as part of the African Commission’s activity report at 2ns Summit and meetingof heads of State at the African Union held in Maputo, 4-12 July 2003.

The United Nations Basic Principles on the Independence of the Judiciary, adopted bythe 7th UN Congress on the Prevention of Crime and Treatment of Offenders andendorsed by the UN General Assembly, 1995; UN Documents A/40/32 and A/40/146.

The United Nations Convention against Corruption, adopted 2003; UN DocumentA/58/422

The Universal Charter of the Judge, adopted by the Central Council of the InternationalAssociation of Judges; in Taipei (Taiwan), November 1999