Report of the Sub-Committee on Ethics ans Governance of the Judiciary

183 Pages·2006·0.4 MB·English

REPUBLIC OF KENYA

THE JUDICIARY

g REPORT OF THE SUB-COMMITTEE ON ETHICS AND
r
o
.
w
GOVERNANCE OF THE JUDICIARY
a
l
a
y
n
e
k

.
w
w
w
Chairman:
The Hon. Mr. Justice J.W. Onyango Otieno

Presented to the
The Hon. Mr. Justice J.E. Gicheru E.G.H.
The Chief Justice of the Republic of Kenya

NOVEMBER 2005

1
g
r
o

.
w
a
al Report of the Sub-
y
n
e
k
.
w Committee on Ethics
w
w
and Governance of the
Judiciary

2
13TH JANUARY 2006

g
r
o PRESS STATEMENT BY THE HONOURABLE THE CHIEF
.
w JUSTICE ON THE REPORT OF THE JUDICIARY SUB-
a
al COMMITTEE ON
y
n ETHICS AND GOVERNANCE
e
k
.
w
w

w

The Kenya Judiciary is pleased to make public the findings of
the Sub-Committee on Ethics and Governance made in its report
to the Chief Justice in January, 2006. The Sub-Committee was
established by the Chief Justice on 18th March, 2005 to investigate
issues related to integrity in the Judiciary and the due administration
of justice. The Committee was part of a biennial review of the state of
the Judiciary and a follow-up on the findings of the previous Integrity
and Anti-Corruption Sub-Committee of 2003. The next review of
the Judiciary is due on 18th March, 2007.

The present report has found a “marked improvement in the
integrity of the Judiciary since September 2003” when the Integrity
3
and Anti-Corruption report was made. Despite this positive
development, the Sub-Committee has noted with regret the
emergence of a trend by persons critical of the Judiciary to continue
to demean the institution on the grounds of the previous reports of
corruption and unethical practices. The Committee has therefore
called for remedial action to bring an end to this fashionable bashing
of the Judiciary by “busy bodies.”

There is a small number of judicial officers against whom
g
complaints of corruption and unethical practices have been lodged.
r
o
.
w These officers were afforded all reasonable opportunity to respond to
a
l
a
y the allegations against them before the Sub-Committee made its
n
e
k findings thereon. The committee’s recommendations in the specific
.
w
w
cases will, in the interests of confidentiality and fairness to both the
w
judicial staff and the complainants not be made public. Nevertheless,
any disciplinary process instituted against the officers shall be
conducted scrupulously in accordance with the relevant provisions of
the law and the Constitution of Kenya, as applicable.

The Sub-Committee has also made useful recommendations
towards entrenching integrity in the Judiciary through substantive
changes in the disciplinary procedures of the Judiciary to make them
more transparent and fair to the affected parties. Some of the
specific measures recommended include:
(a) The establishment of a Judicial Complaints
and Disciplinary Committee (JCDC) to
investigate complaints against judges before
4
their disciplinary cases are referred to the
constitutional Tribunals.
(b) The enhancement of the security of tenure for
magistrates and Kadhis as judicial officers.
(c) The establishment of Disciplinary Committees
of the Judicial Service Commission for
various cadres of Judiciary staff.
(d) The establishment of informal peer review
and advisory mechanism where judges,
g
magistrates and the para-legal staff have local
r
o
.
w peer committees to deal with inappropriate
a
l
a
y conduct by their colleagues that does not call
n
e
k for the formal disciplinary process.
.
w
w
(e) The setting out of the matters that would
w
justify an investigation by the Chief Justice
into the fitness of a judge to hold office and
the intermediary measures that the Chief
Justice may take in lieu of initiating the
disciplinary process in cases which do not
warrant the invocation of the removal
procedure.
(f) The establishment of a Litigant’s Charter to
provide basic information on the process of
the Court in order to enhance accessibility
and effectiveness of the court services.
5
The Sub-Committee has also proposed measures for the
enhancement of integrity of the litigation process of the Court
for the efficient and effective delivery of justice.

The Chief Justice will now consider the recommendations
of the Report and make provisions for its implementation and
particularly the actualization of the comprehensive reform
matrix set out in the Report for the entrenchment of the integrity
and the due administration of justice by the Judiciary.
g

r
o
.
w The Chief Justice is grateful to the Sub-Committee
a
l
a
y members – Hon. Mr. Justice J. W. Onyango-Otieno
n
e
k (Chairman), Hon. Mr. Justice P. Kihara Kariuki (Vice-
.
w
w
Chairman), Mr. Stephen N. Riechi (Secretary), Mrs. Stella M.
w
Muketi and Mr. Samuel K. Kiptorus (Members) and the
support staff involved in the exercise - for their good work.

J. E. GICHERU, E.G.H.,
CHIEF JUSTICE

6
TABLE OF CONTENTS

PAGE

Letter of Transmittal……………………………………………….…………………..(10)
Acknowledgements………………………………………..………………...…………(14)

CHAPTER ONE: INTRODUCTION

1.0 Background to and Establishment of the Sub-Committee………………………16
g
r
o 1.1 The Terms of Reference of the Sub-Committee……….…………………….......17
.
w
a 1.2 Interpretation of the Terms of Reference…………………….………………..…18
l
a
y 1.3 The Organisation and Method of Work of the Sub-Committee……………..…..19
n
e
k 1.4 The Rules and Procedure of the Sub-Committee……….……………….………20
.
w
w
w
CHAPTER TWO: INTEGRITY OF STAFF AND COURT
PROCESSES

2.0 The Concept of Judicial Integrity……………………………...………………..22
2.1 The Key Elements of Judicial Integrity……………………………….………...22
2.2 Integrity of Court Processes…………………………………...….……………..23
2.3. The Integrity of the Staff of the Judiciary ……………………..………………..32

CHAPTER THREE: CASES OF ALLEGED CORRUPTION AND
LACK OF INTEGRITY ON THE PART OF
SPECIFIC JUDICIARY STAFF

3.0 Allegations of Corruption and Lack of Integrity on Specific Judiciary Staff….35

7
CHAPTER FOUR: DISCIPLINARY MEASURES AND PROCESS FOR
JUDGES
4.0 Introduction …………………………………………………………………..….36
4.1 Existing Disciplinary Procedures………………………………………………...36
4.2 Recommendations of the Sub-Committee…………………………..…………...38

CHAPTER FIVE: DISCIPLINARY MEASURES AND PROCESS FOR
MAGISTRATES, KADHIS AND THE PARALEGAL
STAFF OF THE JUDICIARY
5.0 Introduction ……………………………………………………..………..……...43
g
r 5.1 Existing Disciplinary Procedures…………………………………………….…..43
o
.
w 5.2 Weaknesses of the current Disciplinary Procedures……………..………………44
a
l
a 5.3 Recommendations of the Sub-Committee………………………....………….…45
y
n
e
k
.
w
w CHAPTER SIX: THE LITIGANTS CHARTER
w

6.0 Introduction ……………………………………………………………………..54
6.1 The Case for a Litigants Charter in Kenya ………..………………………….....55
6.2 The Recommendations of the Sub-Committee…………………….…………….57

CHAPTER SEVEN: COMPREHENSIVE REFORM MATRIX FOR THE
JUDICIARY

7.0 Introduction ………………………………………………………………….…..60
7.1 Previous Committees and their Recommendations on the
Judiciary……………………………………………………………………..…...60
7.2 Analysis and Rationalisation of the Recommendations of the past Committees on
the Judiciary……………………………..……………………………….…....…64
7.3 Other Matters………………………………………………………………….…64
7.4 The Comprehensive Reform Matrix for the Entrenchment of Integrity in the
Judiciary……………………….……...………………………………………….99
8
APPENDICES

Appendix I Rules of Procedure of the Sub-Committee…….…………..…..111
Appendix II Matters for Investigation by the Chief Justice under Chapter
Four……………………..……………………………..………..113
Appendix III Intermediary Disciplinary Measures that the Chief Justice May
Take under Chapter Four…..…………………………………...114
Appendix IV Model Litigants Charter………………………………….....…..115
Appendix V Recommendations of Previous Committees ……………….…..140
g
r
o
Appendix VI Summary of the Strategic Objectives and Strategies of the
.
w
a Strategic Plan ………………..……….…….....…..……………180
l
a
y
n Appendix VII Proposed Structure of the Judiciary ……………….…………...183
e
k

.
w
w

w

9
The Hon. Mr. Justice J. E. Gicheru E.G.H.
The Chief Justice of the Republic of Kenya
P.O. Box 30041
NAIROBI

Your Lordship,

RE: LETTER OF TRANSMITTAL

g Your Lordship appointed us members of the Ethics and Governance Sub–Committee of
r
o
. the Judiciary on the 18th day of March 2005, with the following mandate:
w
a
l
a
y 1. To collect information relating to the integrity of the entire judiciary staff and
n
e
k court processes;
.
w
w
w
2. To investigate all cases of alleged corruption, unethical behaviour and other lack
of integrity;

3. To study and report on the case for in-house intermediary disciplinary measures,
and the process of punishment for breaches not warranting removal of a judge
from office;

4. To examine and report on the orderly and efficient method consistent with the
rules of natural justice for conducting investigation or inquiry into the fitness of a
judicial officer to hold office or the guilt of a paralegal staff in corrupt or
unethical practice;

5. To deliberate and report on the contents of the “Litigants Charter” to aid the
comprehension of the process of the court by litigants;

10