Cablegate: Judges Protest Proposed Constitutional Changes, Call For

DE RUEHNR #2642/01 3551155
O R 211154Z DEC 09



E.O. 12958: N/A
SUBJECT: Judges Protest Proposed Constitutional Changes, Call for
Institutional Reforms

REF: 09 NAIROBI 2475

1. This is an action request. Please see paragraph 12.

2. Summary: Kenyan judges, long unpopular with citizens due to
their status as the public face of the country's backlogged and
inefficient justice system, are finding few sympathizers with their
concern that provisions in the draft constitution discriminate
against them. There are also divisions within the judiciary itself
on the constitutional provisions and the best way forward on
reform, although there is consensus on the need to streamline and
modernize the Kenyan court system, as well as the need to appoint
more judges and magistrates and to allocate additional financial
resources to the underfunded judicial branch. If judges are not
able to convince the Parliamentary Select Committee to cut the
offending provisions in the draft constitution, they could join
with other interest groups opposed to different elements of the
constitution to lobby against it. End summary.

3. Kenya's judges are protesting over provisions in the draft
constitution (see 09 Nairobi 2514) that will require all sitting
high court and court of appeal judges to resign and either submit
to re-vetting pending reappointment, or retire. (Note: The
provision does not apply to the more numerous magistrates, who are
treated as civil servants and subjects to different terms of
employment. End note.) Calling this "discrimination against the
judiciary," a number of high court judges are beginning outreach
efforts seeking to amend the language in the draft constitution.
Justice Fred Ochieng, who joined the bench in 2003 after President
Kibaki's first election, is among the outspoken critics of the
draft constitution's approach to judicial reform. In a recent
meeting with Poloffs, he called the provisions hypocritical, noting
that sitting members of parliament (MPs), who were elected by
admittedly flawed 2007 elections overseen by a now-discredited and
disbanded Electoral Commission of Kenya, will be permitted to serve
out their terms under the new constitution.

4. Ochieng also argued that the new provisions conflict with
provisions guaranteeing judges life tenure that are contained in
both the current and draft constitutions. He added that there is a
legal process to remove corrupt or incompetent judges (via
petitioning the Chief Justice), and that it is a "dangerous
precedent" to use shortcuts instead of the law. Because the draft
constitution's provision allows for judges who do not have enough
years of service to receive a full pension to take early retirement
anyway, Ochieng argued, some bad or corrupt judges will actually be
rewarded for incompetence. Ochieng said that judges should be
compensated for losing their legitimate expectation of lifetime
employment or, if corrupt, sent home empty-handed.

5. Ochieng, who is the current president of the East Africa
Magistrates and Judges Association and who chairs the
newly-established communications committee within the judiciary,
also described the new constitution's approach as "very bad for
morale," and noted the probable disruption to Kenya's overburdened
court system would be much greater than in 2003, when a number of
judges resigned or were forced out, because all the sitting judges
would be subjected to revetting at the same time. Fundamentally,
Ochieng and his colleagues felt that revetting was discriminatory,
could be manipulated politically to remove activist judges or those
who made rulings against influential political or business figures,
and was unnecessary given that legal mechanisms already exist to
remove judges accused of wrongdoing.

6. Poloffs also met with Justice Isaac Lenaola, the current
chairman of the Kenya Magistrates and Judges Association. Lenaola,
like Ochieng, joined the bench from private practice in 2003 and
served as a member of the recently-concluded Judicial Reform Task
Force. Lenaola stated that he thought the Committee of Experts
(CoE) drafting the constitution should not have reopened the
provisions on the judiciary as they were not controversial in the
2005 Bomas and Wako drafts, and that they should have restricted
their review to contentious issues only. But since they had gone
ahead and done so, Lenaola continued, the CoE should try to address
core issues that have caused a loss of public confidence in the
judiciary. He added that he did not object to submitting to
revetting, but felt it was important that judges be permitted to
remain on the bench while undergoing the revetting process. That
way, he argued, judges found to be corrupt or incompetent could be
sent home without retirement benefits, where allowing early
retirement of those who choose not to submit to vetting could have
the perverse effect of rewarding the worst judges.

7. On the proposed composition of the Judicial Service Commission
(JSC), Lenaola said that he felt the Chief Justice should remain as

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a member of the commission, and that the new JSC should be more
inclusive, especially of magistrates who are responsible for the
bulk of Kenya's civil and criminal caseload. Lenaola endorsed the
LSK's proposal that the JSC include representatives from the
private sector, LSK itself, and additional magistrates, and also
agreed that Francis Muthuara, the influential head of the Civil
Service and a close advisor of President Kibaki, should not retain
a seat on the JSC as his presence amounts to executive branch
interference in the judiciary. Lenaola also recommended the
establishment of an internal peer review mechanism, empowered to
impose sanctions, to weed out corruption and incompetence in the
judiciary. He said there is also a need for a mechanism for
enforcement of court rules and discipline low-level court employees
like paralegals, clerks, and registry officials, as he thought most
corruption (and accompanying negative impact on public opinion)
takes place at this level, but it is very difficult under the
current system for judges who observe this behavior (for example,
demanding extra payments to procure documents) to get the offending
civil service employee punished or dismissed.

8. Lenaola said that the Supreme Court proposed in the draft
constitution would be a welcome addition, but that the failure to
clarify the role of the Chief Justice in the draft was a major
oversight and needed to be corrected. He noted that it would
greatly assist the oversight of the judiciary to both decentralize
and delegate administrative powers from the Chief Justice to heads
of divisions of the high court, and to provide the Registrar with a
professional secretariat. He added (and Ochieng agreed) that the
Registrar's office needed a complete overhaul and additional
professional staff with skills in accounting, management, human
resources, etc. (Note: The current Registrar, who oversees the
day-to-day management of the entire judiciary, is a magistrate by
profession, and she and her small staff, while well-respected, are
overwhelmed and ill-equipped to manage the administrative and
budgetary needs of the judiciary. End note.)

9. Under the draft constitution, vetting of judges would be
conducted by an Interim Judicial Service Commission (IJSC) composed
of two retired Kenyan judges, two retired Commonwealth judges, and
one magistrate. The IJSC will look at whether judicial candidates
have any criminal, civil, or corruption cases filed against them
and whether they are competent. This raises concerns for many
judges, who have argued that anyone who wants to disqualify a
candidate can simply file a civil suit against him, no matter how
spurious the claim may be. Given the slow pace of the Kenyan
judicial system, it could be months or years before a frivolous
lawsuit would be thrown out. Judges also raised concerns about the
requirement in the draft constitution that MPs must approve
judicial candidates, arguing that this would compromise judicial
independence and integrity and would make judges inappropriately
beholden to sitting MPs, perhaps interfering with the ability to
make impartial legal judgments against them.

10. Ochieng and his colleagues on the communications committee
stressed the need to create a more accountable system of work, as
the current judicial system is not meeting the public's
expectations. They reiterated the need for judicial institutions to
be more efficient and better funded. Kenya currently has 66 high
court and court of appeal judges and 282 magistrates to serve a
population of approximately 38 million people, and lack of
courtroom space is preventing the government from filling the three
vacancies on the court of appeal and 23 vacancies in the high

11. Another complaint is that the judiciary does not have
independent control over its budget, which is currently managed by
the Ministry of Justice. In addition, Ochieng argued, the
judiciary's budget for FY 2009 is 1.8 billion Ksh ($23.8 million),
or about 0.2 percent of Kenya's 760 billion ($10 billion) Ksh
budget, while the Parliament's budget is more than 7 billion Ksh
($92 million). Ochieng noted that in a speech at a recent seminar,
the head judge of the ICTR noted that the international standard
for effective judicial function is to allocate between 1.5 and
three percent of the national budget.

12. Action request: Partly due to concern about the provisions in
the draft constitution, the judiciary, which has traditionally not
been very open to accepting outside guidance, is showing an
unprecedented willingness to engage in dialogue with donors and to
consider reforms that would improve the overall functioning of the
system as well as help to heal the distrust between the public and
other stakeholders in the system and the judges and magistrates.
Post therefore requests additional resources for the Resident Legal
Advisor (RLA) to conduct training and bring in technical experts in
areas like court records and systems automation, case management,

NAIROBI 00002642 003 OF 003

court administration, and judicial ethics. The RLA is already in
negotiations with Judge Ann Williams of the Seventh Circuit Court
of Appeal to return to Kenya and provide training and advice to
senior judicial officials on court administration and oversight,
and we would like to build on her engagement by bringing out other
technical experts while the judiciary (and the Chief Justice) is
ready to institute meaningful reforms. We also reiterate our
request in ref A para 5 for an additional Legal Advisor, as the
current RLA has numerous responsibilities, including
counterterrorism-related training and engagement on piracy
prosecutions, that do not leave sufficient time for engagement on
judicial reform.

13. Comment: Years of refusing to respond publicly to criticism or
engage in dialogue with the public and civil society (this attitude
is still embodied by Chief Justice Gicheru), coupled with the
dismal performance of the Kenyan judicial system, has led to public
resentment and hostility towards judges. Despite belated outreach
efforts, there is little to no sympathy for the judges' plight even
among court stakeholders and organizations like the Law Society of
Kenya. However, the judges' high-level political connections may be
sufficient to sway the CoE and/or Parliamentary Select Committee
into making changes to the draft constitution once it reaches them
in early January 2010. If they do not succeed in getting the
changes they want (chiefly the removal of the revetting
requirement), judges could join with groups opposed to other
elements of the draft constitution (for example, Christian groups
opposed to the retention of Muslim Khadi's courts) to lobby against
passage of the constitution at a national referendum. On the
positive side, the judiciary appears more willing than ever before
to implement systemic reforms that will improve the efficiency of
the entire court system, and we would like to take advantage of
this opening as soon as possible given the urgency of restoring
public confidence in the impartiality and integrity of the
judiciary. End comment.

© Scoop Media

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