Justice delayed? Corruption, nepotism & e-filing woes rock the Judiciary – Lawyer Harrison

[00:00:00]may not understand. Okay, fine. What exactly it means to boycott uh judges and uh will this continue against any number of judges going forward? What is your intention? What do you intend this to achieve?

[00:00:15]>> Well, um thank you very much. Um let me first say that the judiciary occupies a constitutional position in our um social, economic, political architecture and we as a Kenyan people decided at the get-go uh even um before colonialism the issue of justice in society was entrenched in every culture that I know of. Um if you notice when um the African societies were set up before colonization I don't think you can find any place at least in Africa um or let me just confine myself to the Kenyan context because in West Africa there were scenarios >> that you could find a sale to hold uh quoteunquote criminals.

[00:01:13]So in in African societies there there were norms, there were taboos and there were cultures that the society nurtured you know people from uh a very tender age to recognize to respect to uphold as the rules of uh existence.

[00:01:35]Come colonization then we have the British system of governance and the judicial um arm was erected. Up to this day it bears these foreign structures to it and the expressions even in the court today of the parameters of adjudication and delivery of justice are still couched in foreign terms. Latin maxims.

[00:02:05]You have one maxim that says that that which is illegal from the beginning cannot vest in you subsequently any right if from the beginning it was illegal.

[00:02:16]>> Mhm.

[00:02:17]>> The Latin maxim used in court to a stranger you will hear or nonioh >> that's a legal I mean it's it's a legal maxim it's used today.

[00:02:30]So the Kenyan person is confronted without legal representation with that strange expression. But it is basically to say if you stole something your root of possession and title to that is is is fatal. You you cannot pass any better title to somebody else. You cannot sell something that you stole.

[00:02:51]>> [snorts] >> So we have a judiciary today erected as a an institution to deliver justice but it enjoys a monopoly.

[00:03:06]Now there is the right to access justice which is found in article 48 of the constitution and once you find yourself in the justice system there's a hierarchy of the courts beginning with the tribunals that are established like the uh transport appeals tribunal where if the NTSA uh does a decision that you're agreved by then you can appeal under section 38 to the uh transport appeals tribunal the electricity tribunal, the tax tribunal. So at that level you then find the lowest instrumentality of the judiciary now to which you can secure a justice. Then you go to the chief magistrate's court which then have a hierarchy, the high court, then the court of appeal and ultimately the supreme court. Now all these are manned by personnel that are hired by the judicial service commission. And there is a basic assumption that these personnel this the staff that man the institution at that basic level should I say administrative level uh all the way up to the highest level of the chief justice that they have subscribed to the code of conduct and that's by law in the judicial service code of conduct you find parameters of conduct that a judge and a judicial officer that means someone who's a clerk or a court administrator in the justice system must abide by they have to subscribe they have to sign that to now the question is now on a practical daily basis in their functional uh uh services or service rendering do they live up to these uh particular expectations in the code so you find corruption for instance bias nepotism sexual harass ment and so on so forth all those are supposed to be then uh resolved if you have a complaint by the judicial service commission. So the judicial service commission is a instrumentality by means of which a resolution implicating the judiciary or the judicial officers should be resolved. Now you have a new arm sorry a separate arm called the ombbudsman. The ombbudsman is supposed then to inquire such administrative or other complaints that you may have against public officers including they who are in the judiciary.

[00:05:37]Now what has happened is that complaints are leveled and >> before the judicial >> before before the judicial yeah the JC and the JC has a law society representative a member from the uh uh uh the the bench that is the judges the magistrates and and so forth I'm not going to go into that because of time but that JC being vested now with the power to investigate The conduct that is complained of against a judiciary officer is again as presumed to be objective about the law.

[00:06:16]a political meaning that it doesn't you know side with this side or the other side of the political divide and it's supposed to be very objective fair and all of those all those tenants are there but the question is do they have they and do they intend to abide by those principles and precedents the judicial service the judicial service commission now you find that if a judge for instance has had complaints against him or her and u they uh then are not prepared to go before the JSC and objectively have that dispute resolved.

[00:06:56]They rush to the high court in the manner and the style that he can attest to the violence in Okala, the bribery and all of that. a certain member of parliament of the National Assembly was found by the electoral commission's uh ethics sorry um committee to be guilty of electoral offenses and then he rushed to the high court and the judiciary review division then gave him an order to stop [snorts] the finding taking effect the fine he couldn't pay because of it's it's it's kept in in in in a frozen state until now the case is heard and determined Now, everybody has a right to access justice. Like I said, under article 48, everybody has a right to a fair trial under article 25 C sub article C of the constitution as read with article 50 sub article one of the constitution.

[00:07:50]However, the um high court that level intervenes.

[00:07:56]In other words, this judge with a complaint before the judicial service commission >> goes before another judge >> goes before another judge. Now we do not know and I don't want to cast expressions on any judicial officer. We do not know how this judge with a complaint is professionally related with a judge now you know hearing his or her complaint or saying that you know the JC's are like to give me a fair hearing.

[00:08:19]Oh, you know the JC whatever it is.

[00:08:22]>> So you find that that state of the freezing of the judicial service commission complaint >> is perpetuated over a long period of time.

[00:08:33]>> In the meanwhile and because the whatever is suspended the inquiry is is suspended this judge he continues he >> continues to Yes. Yes. Yes. But you must remember the initial complaint before the JC against this particular judge may have been corruption.

[00:08:51]>> Mhm.

[00:08:51]>> So the act of freezing this inquiry does not you know stop this judge from continuing to receive bribes. There's one particular judge for instance who has a complaint in the public domain that well you know it was so brazen that you know the demand for the bribe was so brazen and so that is a problem which is there. Now I'm not saying that I support the idea that you know advocate should then boycott cases because you're handling you're in a fiduciary position as a lawyer. a client has come to you, you know, >> you do not support the the boycott that took place yesterday.

[00:09:34]>> No, no, no. Hear me out. Hear me out. I do not holy because I'm saying here there's a failure on the part of the JSC which has led to this scenario and there is a collapse of the communication because the JS sorry the chief justice was saying in her statement that look >> we do have a forum and this forum of the senior council and other members of the bar and plus now the j the magistrates and the judges should resolve this like an in-house thing. However, the person who suffers most is that very consumer of justice. I must remind Kenyans, article 46 of the constitution does say that your consumer rights extend to services rendered by the government.

[00:10:17]>> Okay?

[00:10:18]>> And the judiciary is failing. And one of the areas that the judiciary is failing is because the chief justice in in cahoots with I'm going to say this with respect to her. Yes. Because this is a pending court case. And we'll be back to you Wil in a short while because we also want Yamorei to join the panel uh so that he can >> is is is is having this e filing system and it fails and so you find that you as a lawyer you have the obligation to your client you're unable then to file this case not because of your fault not because of your client's fault but because of the judiciary system of filing. Okay. And they have eroded everybody else into it. Now that poor the indigent person who is unabling to access the e system the electronic the digital filing system you you you've cut him or her off you've denied him justice.

[00:11:08]>> Mhm. So quite a number of lawyers allege uh judicial corruption and misconduct, chronic delays in case determination, registry inefficiencies, uh what you mentioned e- filing disruptions and poor case management, discourtious treatment of advocates, uh weak mechanisms of for handling complaints against judicial officers, But