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MWANGI: JSC is the real culprit in decline of the Judiciary

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By PAUL MWANGI
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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In the repealed Constitution, it is the Chief Justice who held the power to recommend the commencement of removal proceedings of a judge.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.

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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



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General

Sordid tale of the bank ‘that would bribe God’

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Bank of Credit and Commerce International. August 1991. [File, Standard]

“This bank would bribe God.” These words of a former employee of the disgraced Bank of Credit and Commerce International (BCCI) sum up one of the most rotten global financial institutions.
BCCI pitched itself as a top bank for the Third World, but its spectacular collapse would reveal a web of transnational corruption and a playground for dictators, drug lords and terrorists.
It was one of the largest banks cutting across 69 countries and its aftermath would cause despair to innocent depositors, including Kenyans.
BCCI, which had $20 billion (Sh2.1 trillion in today’s exchange rate) assets globally, was revealed to have lost more than its entire capital.
The bank was founded in 1972 by the crafty Pakistani banker Agha Hasan Abedi.
He was loved in his homeland for his charitable acts but would go on to break every rule known to God and man.
In 1991, the Bank of England (BoE) froze its assets, citing large-scale fraud running for several years. This would see the bank cease operations in multiple countries. The Luxembourg-based BCCI was 77 per cent owned by the Gulf Emirate of Abu Dhabi.  
BoE investigations had unearthed laundering of drugs money, terrorism financing and the bank boasted of having high-profile customers such as Panama’s former strongman Manual Noriega as customers.
The Standard, quoting “highly placed” sources reported that Abu Dhabi ruler Sheikh Zayed Sultan would act as guarantor to protect the savings of Kenyan depositors.
The bank had five branches countrywide and panic had gripped depositors on the state of their money.
Central Bank of Kenya (CBK) would then move to appoint a manager to oversee the operations of the BCCI operations in Kenya.
It sent statements assuring depositors that their money was safe.
The Standard reported that the Sheikh would be approaching the Kenyan and other regional subsidiaries of the bank to urge them to maintain operations and assure them of his personal support.
It was said that contact between CBK and Abu Dhabi was “likely.”
This came as the British Ambassador to the UAE Graham Burton implored the gulf state to help compensate Britons, and the Indian government also took similar steps.
The collapse of BCCI was, however, not expect to badly hit the Kenyan banking system. This was during the sleazy 1990s when Kenya’s banking system was badly tested. It was the era of high graft and “political banks,” where the institutions fraudulently lent to firms belonging or connected to politicians, who were sometimes also shareholders.
And even though the impact was expected to be minimal, it was projected that a significant number of depositors would transfer funds from Asian and Arab banks to other local institutions.
“Confidence in Arab banking has taken a serious knock,” the “highly placed” source told The Standard.
BCCI didn’t go down without a fight. It accused the British government of a conspiracy to bring down the Pakistani-run bank.  The Sheikh was said to be furious and would later engage in a protracted legal battle with the British.
“It looks to us like a Western plot to eliminate a successful Muslim-run Third World Bank. We know that it often acted unethically. But that is no excuse for putting it out of business, especially as the Sultan of Abu Dhabi had agreed to a restructuring plan,” said a spokesperson for British Asians.
A CBK statement signed by then-Deputy Governor Wanjohi Murithi said it was keenly monitoring affairs of the mother bank and would go to lengths to protect Kenyan depositors.
“In this respect, the CBK has sought and obtained the assurance of the branch’s management that the interests of depositors are not put at risk by the difficulties facing the parent company and that the bank will meet any withdrawal instructions by depositors in the normal course of business,” said Mr Murithi.
CBK added that it had maintained surveillance of the local branch and was satisfied with its solvency and liquidity.
This was meant to stop Kenyans from making panic withdrawals.
For instance, armed policemen would be deployed at the bank’s Nairobi branch on Koinange Street after the bank had announced it would shut its Kenyan operations.
In Britain, thousands of businesses owned by British Asians were on the verge of financial ruin following the closure of BCCI.
Their firms held almost half of the 120,000 bank accounts registered with BCCI in Britain. 
The African Development Bank was also not spared from this mess, with the bulk of its funds deposited and BCCI and stood to lose every coin.
Criminal culture
In Britain, local authorities from Scotland to the Channel Islands are said to have lost over £100 million (Sh15.2 billion in today’s exchange rate).
The biggest puzzle remained how BCCI was allowed by BoE and other monetary regulation authorities globally to reach such levels of fraudulence.
This was despite the bank being under tight watch owing to the conviction of some of its executives on narcotics laundering charges in the US.
Coast politician, the late Shariff Nassir, would claim that five primary schools in Mombasa lost nearly Sh1 million and appealed to then Education Minister George Saitoti to help recover the savings. Then BoE Governor Robin Leigh-Pemberton condemned it as so deeply immersed in fraud that rescue or recovery – at least in Britain – was out of the question.
“The culture of the bank is criminal,” he said. The bank was revealed to have targeted the Third World and had created several “institutional devices” to promote its operations in developing countries.
These included the Third World Foundation for Social and Economic Studies, a British-registered charity.
“It allowed it to cultivate high-level contacts among international statesmen,” reported The Observer, a British newspaper.
BCCI also arranged an annual Third World lecture and a Third World prize endowment fund of about $10 million (Sh1 billion in today’s exchange rate).
Winners of the annual prize had included Nelson Mandela (1985), sir Bob Geldof (1986) and Archbishop Desmond Tutu (1989).
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Tracking and monitoring motor vehicles is not new to Kenyans. Competition to install affordable tracking devices is fierce but essential for fleet managers who receive reports online and track vehicles from the comfort of their desk.

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Agricultural Development Corporation Chief Accountant Gerald Karuga on the Spot Over Fraud –

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Gerald Karuga, the acting chief accountant at the Agricultural Development Corporation (ADC), is on the spot over fraud in land dealings.

ADC was established in 1965 through an Act of Parliament Cap 346 to facilitate the land transfer programme from European settlers to locals after Kenya gained independence.

Karuga is under fire for allegedly aiding a former powerful permanent secretary in the KANU era Benjamin Kipkulei to deprive ADC beneficiaries of their land in Naivasha.

Kahawa Tungu understands that the aggrieved parties continue to protest the injustice and are now asking the Ethics and Anti-corruption Commission (EACC) and the Directorate of Criminal Investigations (DCI) to probe Karuga.

A source who spoke to Weekly Citizen publication revealed that Managing Director Mohammed Dulle is also involved in the mess at ADC.

Read: Ministry of Agriculture Apologizes After Sending Out Tweets Portraying the President in bad light

Dulle is accused of sidelining a section of staffers in the parastatal.

The sources at ADC intimated that Karuga has been placed strategically at ADC to safeguard interests of many people who acquired the corporations’ land as “donations” from former President Daniel Arap Moi.

Despite working at ADC for many years Karuga has never been transferred, a trend that has raised eyebrows.

“Karuga has worked here for more than 30 years and unlike other senior officers in other parastatals who are transferred after promotion or moved to different ministries, for him, he has stuck here for all these years and we highly suspect that he is aiding people who were dished out with big chunks of land belonging to the corporation in different parts of the country,” said the source.

In the case of Karuga safeguarding Kipkulei’s interests, workers at the parastatals and the victims who claim to have lost their land in Naivasha revealed that during the Moi regime some senior officials used dubious means to register people as beneficiaries of land without their knowledge and later on colluded with rogue land officials at the Ministry of Lands to acquire title deeds in their names instead of those of the benefactors.

Read Also: Galana Kulalu Irrigation Scheme To Undergo Viability Test Before Being Privatised

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“We have information that Karuga has benefitted much from Kipkulei through helping him and this can be proved by the fact that since the matter of the Naivasha land began, he has been seen changing and buying high-end vehicles that many people of his rank in government can’t afford to buy or maintain,” the source added.

“He is even building a big apartment for rent in Ruiru town.”

The wealthy officer is valued at over Sh1.5 billion in prime properties and real estate.

Last month, more than 100 squatters caused scenes in Naivasha after raiding a private firm owned by Kipkulei.

The squatters, who claimed to have lived on the land for more than 40 years, were protesting take over of the land by a private developer who had allegedly bought the land from the former PS.

They pulled down a three-kilometre fence that the private developed had erected.

The squatters claimed that the former PS had not informed them that he had sold the land and that the developer was spraying harmful chemicals on the grass affecting their livestock and homes built on a section of the land.

Read Also: DP Ruto Wants NCPB And Other Agricultural Bodies Merged For Efficiency

Naivasha Deputy County Commissioner Kisilu Mutua later issued a statement warning the squatters against encroaching on Kipkuleir’s land.

“They are illegally invading private land. We shall not allow the rule of the jungle to take root,” warned Mutua.

Meanwhile, a parliamentary committee recently demanded to know identities of 10 faceless people who grabbed 30,350 acres of land belonging to the parastatal, exposing the rot at the corporation.

ADC Chairman Nick Salat, who doubles up as the KANU party Secretary-General, denied knowledge of the individuals and has asked DCI to probe the matter.

Email your news TIPS to [email protected] or WhatsApp +254708677607. You can also find us on Telegram through www.t.me/kahawatungu

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William Ruto eyes Raila Odinga Nyanza backyard

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Deputy President William Ruto will next month take his ‘hustler nation’ campaigns to his main rival, ODM leader Raila Odinga’s Nyanza backyard, in an escalation of the 2022 General Election competition.

Acrimonious fall-out

Development agenda

Won’t bear fruit

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