It was clear from the address of Chief Justice David Maraga during the multi-sectoral anti-corruption conference on January 25 that the head of the Judiciary has yet to get the point Kenyans are making.
I wish to summarise the issues in two statements. Firstly, that Kenyans are telling the Judiciary that it has become so alienated from them and their aspirations that it may not be serving the purpose for which it was created.
Article 159 of the Constitution says that judicial authority is derived from the people and vested in the courts.
Judges and magistrates cannot therefore take on an attitude of independence that in effect derogates the basic fact that they are supposed to be exercising that authority for the welfare of the people.
When people complain that judges and magistrates are now compromising their welfare, and sometimes their lives, in the interest of a self-mandated commission to extend the rights of criminal suspects to the highest-level possible, it is callous in the extreme for the Judiciary to answer them not by promising to explore a better balance but by promising to continue throwing away criminal cases.
The second point Kenyans are making is that it has become so rife with corruption that it is no longer a useful instrument in the fight against graft.
These accusations of corruption are not unfairly made against the Judiciary by people who want to compromise judicial independence.
They were first made by the heads of the Judiciary. It is Chief Justices Willy Mutunga and David Maraga who should come out and tell us what they meant by the accusations they made against their colleagues and why nothing was done about it.
In my analysis, the reason why Dr Mutunga paid and Mr Maraga continues to pay lip service to corruption within the Judiciary is because the Chief Justice doesn’t have the power.
In the 2010 Constitution, the Chief Justice is described as the head of the Judiciary but is given no power of discipline over judges and magistrates.
In the repealed Constitution, it is the Chief Justice who held the power to recommend the commencement of removal proceedings of a judge.
Today, that power lies exclusively with the Judicial Service Commission (JSC). The Chief Justice may bark but the teeth are with the JSC.
Added to this constitutional impotence is the reality that the Chief Justice is beholden to the commission.
It is members of JSC who picked him to serve as Chief Justice, and when you consider the significant membership of judges in the commission, it is inconceivable they would have appointed a person who would be a problem to them.
Would servants, when given the power to hire their boss, employ a strict one?
It is therefore equally inconceivable that the Chief Justice would be the person to antagonise the JSC when he assumes office.
The problem at the JSC began the day it started its first assignment, the recruitment of the new Chief Justice.
Various interests had determined that it was critical for the future of reform in the Judiciary that the first Chief Justice under the new constitution was an outsider.
The first cartel in the commission was formed for the purpose of delivering this result.
Its mode of operation included painting in the worst possible light any candidate who posed a threat to the chosen “outsider”.
Kenyans were enthralled by the live coverage of the interviews as senior judges and advocates were taken through an inquisition tailored to discredit them as possible candidates for the position.
Dr Mutunga did become Chief Justice but he was now beholden to the JSC cartel.
Later, at the end of his tenure, the cartel had decided that Dr Mutunga needed to be succeeded by an outsider.
But this time, another cartel had formed that had decided that an outsider should never again be allowed to head the Judiciary.
They particularly wanted to ensure that Prof Makau Mutua did not succeed Dr Mutunga. The new JSC cartel won the day and installed Justice Maraga.
The interviews for the first Chief Justice, and those that followed for other judgeship positions, had a chilling effect on the legal profession to the extent that many senior lawyers will today not agree to apply for any position in the Judiciary for fear of the humiliation they saw their senior colleagues being subjected to.
This has greatly compromised the overall capacity of the Judiciary.
But it has also introduced self-interest as a criterion in recruitment of judges and magistrates to the point that a former member of the commission described to me the new method as a “horse trading”, where vacancies are simply being shared between cartel members to employ their friends and relatives.
The Judiciary emerges from this with a CJ who is beholden to some JSC members and a large number of judicial staff who have godfathers at the commission.
The result is the kind of incident captured by the Judges and Magistrates Vetting Board in their final report.
An accused person had found himself facing onerous bail terms imposed by a senior magistrate and as a result was remanded in jail.
He approached a junior magistrate who secretly procured the file from the registry, altered the bail amount by writing over the other magistrate’s figure and illegally released the accused person.
When the matter was reported to the JSC, the junior magistrate called his godfathers at the commission and was simply admonished.
Instead, the senior magistrate was transferred away from the station, and the corrupt junior magistrate was promoted to head it.
And that is one example of how the Judiciary has become corrupt again.
The disciplinary process has been sabotaged to the extent that judges and magistrates have virtually absolute immunity even for criminal conduct.
That is why they are not bothered by the public outcry about their seeming conspiracy with criminals.
Where the JSC cartels cannot compromise the issue as was done for the magistrate, then they simply stall the matter.
As of this year, the JSC has yet to attend to disciplinary complaints that were filed years ago.
Where private persons have decided to push their complaints directly by way of actions against judges in their personal capacity for corruption, the courts have declared that judges are immune from liability even if they acted maliciously against a person.
This has been despite the provisions in the Constitution that judges enjoy immunity only if they acted in good faith and in the lawful performance of their duties.
A question that is increasingly crying for an answer is: Who is the Kenyan Judiciary answerable to? To me the answer is that the Judiciary is answerable to itself.
This has been the product of a fantastic view of the doctrine of judicial independence and the institutional design of the JSC.
When we say that the Judiciary should be independent, it means more than independence from the Executive.
Independence includes from all form of improper influences including from private sources.
The issue of independence from improper private influences is one no one in the Judiciary wants to discuss.
The reason of course is because sections of the Judiciary have been captured by these improper private influences both within and without the institution.
So powerful are these influences, and so lucrative is a seat at the commission, that in the 2015 JSC elections, millions of shillings were spent in the campaigns for representative of judges, magistrates and advocates.
Yet the position is a part-time engagement for which members only earn a sitting allowance.
With the Salaries and Remuneration Commission having put a cap on the number of meetings a commission can have per month, this expensive and desperate interest in a seat at the JSC means there is a big payback behind the scenes.
There is an urgent need to review the entire chapter on the Judiciary. We must find a way of making the Judiciary answerable to the people.
The idea of self-discipline will not work. I do agree with the statement made by the vetting board in its final report.
“The common thread emanating from several stakeholders is that there is need for the setting up of a swift, transparent and efﬁcient disciplinary system to deal with complaints against judicial ofﬁcers and staff.
“The board accordingly recommends that the National Assembly enact a law setting up an independent disciplinary tribunal anchored within the Judicial Service Commission.”
Meanwhile, I do support the ultimatum issued to the Chief Justice by Mr Wilfred Kiboro asking him to find a way to take action on the rot in the Judiciary before the people decide to act themselves.
A radical surgery is long overdue. The only question is whether CJ Maraga will find a way to conduct it himself, or he wants to dare Kenyans to do it themselves.
Mr Mwangi is an advocate of the High Court and legal adviser of former Prime Minister Raila Odinga