Kenya’s former chief justice Dr Willy Mutunga says a progressive legal system in African countries will only be attained if judiciaries defy manipulative antics of the executive or long-term associates. He’s right!
And Dr Mutunga recommends the usage of forensic lifestyle audits to restrain corruption in the judiciary.
“In the case of Kenya, I found that judges know the colleagues who are taking bribes but they will never tell you. For five years [that I was chief justice], I used to hear people talk about a judge who was called ATM (Automated Teller Machine) but I didn’t know who the judge was until he was prosecuted much later. So, you have colleagues who laugh at other colleagues, instead of basically saying ‘please stop’,” Dr Mutunga said.
I find that culture very difficult to understand. But I think in terms of corruption, for me the best way of fighting it is actually through what is called forensic lifestyle audit. In our judiciary [system], we are supposed to file a declaration of wealth every two years but the law provides that it has to be sealed once you file until somebody goes to court asking for it to be made public. But forensic lifestyle audit will basically subject judges to explaining their accumulation of wealth because your salary is in the public domain. I think it (forensic lifestyle audit) can assist because these other processes are so difficult! The struggle against corruption in the judiciary is a double-edged sword; my experience in Nairobi is that incorruptible judges, great judges are actually targetted by the system.
We have a serious problem and challenge of corruption in our judiciary. We have many judges and other judiciary officers living far beyond their earned incomes. And living beyond one’s earned income is in itself a prima facie case of corruption. We have many judges with offshore bank accounts. What are they afraid of? What are they hiding? And it’s very difficult to make such judges accountable as they are often very close to those in power and who control the Anti-Corruption Commission, the Drug Enforcement Commission, the Judicial Complaints Commission and the police.
These are judges who, in the first place, were appointed by those in power because of their closeness to them. It is such judges who take care of the interests of those in power, the appointing authorities.
And no matter what complaint a citizen brings against such judges, nothing moves, happens. A good example of this is the case of judge Sunday Nkonde. This is the judge handling the matter that is being driven by State House against The Post and Dr Fred M’membe. Judge Nkonde has so far made decisions in this matter that cannot in any way pass scrutiny. Complaints have been raised against judge Nkonde with the Judicial Complaints Commission and the Chief Justice but nothing has happened, is happening. And corruption complaints have been raised against judge Nkonde with the Anti-Corruption Commission over the money he has questionably appropriated from the bank account of Tedworth, money that is supposed to belong to the state. Again, the Anti-Corruption Commission is silent over a matter yet it has all the evidence about what judge Nkonde has done.
Some judges are talking about judges who entertain litigants with brief cases, envelopes of money in their chambers after 17:00 hours. But no one is ready to tell such judges to stop it. In stating all these things, we are not in any way trying to be malicious or contemptuous. Criticism of a judge’s conduct or of the conduct of a court even if strongly worded is, however, not contempt, if it is fair, temperate and made in good faith. There’s need to courageously, tenaciously and without respite fight this corruption. Judicial corruption is a serious menace to basic individual freedoms. It is also inimical to judicial independence and to the constitutionally desired social order. The constitutional process for the removal of judges need not be politically cumbersome, if a constitutionally sincere approach were to prevail. And this is one constitutional process that may not belong rightfully to the judiciary, lest it prove contrary to the rule of law maxim: no person shall be a judge in her own cause.
An effective judiciary guarantees fairness in legal processes. It’s a powerful weapon against corruption. But people’s experiences in court are often far from fair. Judges can be bribed, or they can suffer pressure from above. If politicians abuse their power, they can influence decisions and distort appointment processes. As the Kenyans have shown us, a range of simple reforms can prevent judicial corruption and ensure that the decisions of our judges are based on merit rather than favouritism. Several measures can be put in place to protect judges from pressure. These include investigations of credible allegations against them, and limited liability for decisions. Court officials must be aware that if corruption is proved, they’ll be removed in a fair, open way. Civil society, the private sector, the media – we all have a vital role to play. We must expose judicial bias and drive reforms to increase courtroom honesty. Judicial corruption means the voice of the innocent goes unheard, while the guilty act with impunity. Corruption damages the judicial system and thousands of citizens are denied access to justice and protection of their individual rights. A non-corrupt judiciary is a fundamental condition for the endorsement of rule of law and the ability to guarantee basic human rights to the Zambian people in all their diversities. Our judiciary must therefore be an independent and fair body that fights corruption, not the other way around. Judicial corruption is detrimental and breaks down the very core of rule of law. And corrupt judges neglect fundamental principles such as equality, impartiality, propriety and integrity. There’s need for very high levels of judicial accountability. Why do we carefully watch the people who make our laws, but never check on the people who administer them? Judges become corrupt because no one, except the victims, know what goes on in their courtrooms. The lawyers aren’t going to say anything because they will likely be in front of the same judge the next day, week or month.
So with unlimited power and no feedback from the public, judges come to understand that they can do anything they want and they start to believe that whatever they do is justified. Anyone will come to have this attitude when there is no one to provide a reality check. Anyone, from a human resource manager to a head of state, is likely to become an evil dictator if he or she cannot be held accountable for his or her actions. This is summed up in the adage “absolute power corrupts absolutely”.
Judges aren’t bad people, they are just people and people are likely to become corrupt if there is no incentive to stay honest. We all know this. If we want a fair justice system, we need to provide judges with more incentive to be honest. Judges become corrupt when strong personal agendas enjoy absolute power. Judges are our public servants. We hire them to administer our laws. But all too often, judges make decisions that are contrary to the law or against the weight of evidence. While money can be the motivation for judicial corruption, we think that judges are most often corrupted by their own prejudices, vendettas and personal affiliations. Don’t forget, judges are appointed by politicians, not elected. But if a judge is giving more consideration to his or her personal agenda than to the evidence or the law, then we need to remove him or her from office. Our legislators make laws and our judges administer them. That is the deal.