Kelly McParland
National Post
October 25, 2003

It was an innocuous enough note, pinned to the door of Lady Justice Sarah Ondeyo’s courtroom at the Milimani Commercial Courts in Nairobi.

It said: “All cases listed before Courtroom 403 will be mentioned before Mr. Justice Mwera’s court in Room 305.”

In all, 14 of Lady Justice Sarah’s cases were transferred to Justice Mwera, doubling his caseload. There was no sign of Lady Justice Sarah, whose parking space was empty. There was speculation she’d gone to return her official car.

Behind the note was something of a revolution. Mwai Kibaki, who took over as President this year after almost 40 years of rule by the Kenya African National Union, had just suspended half the country’s most senior judges and appointed two tribunals to look into allegations the courts were rife with “corruption, unethical practices and absence of integrity.”

Six of the nine judges on the Appeals Court, the country’s highest, were named, as were 17 of 36 on the High Court, including Lady Justice Sarah. There was chaos for a day or two after the announcement last week, but the confusion was welcomed. It is estimated Kenyans are asked for a payoff two out of every three times they deal with a public employee; Mr. Kibaki’s purge was the firmest sign yet he’s serious about his promise to do something about it.

It came as no surprise that the courts were crooked. In 2002, after a visit to Kenya, a Panel of Eminent Commonwealth Legal Experts, including two Canadians, warned “the air is full of allegations of corruption, incompetence and inefficiency.” A formal investigation by Justice Aaron Ringera was more detailed, reporting last month that 50% of judges and a third of magistrates take bribes. The Daily Nation, a Nairobi newspaper, printed a “price list” it said was contained in an unpublished part of Judge Ringera’s report, indicating it cost almost US$200,000 to buy an Appeals Court Judge, up to US$20,000 for a High Court judge, and about US$3,000 for a magistrate. A favourable decision on a murder charge could set you back US$30,000, while manslaughter, rape or drug charges cost up to US$10,000.

Though badly compromised, the courts are far from Kenya’s worst offenders. In a detailed breakdown of the everyday graft that afflicts the country, Transparency International calculates the judiciary comes in sixth on a list of 52 public agencies that expect bribes of some sort. The most honest are the Central Bank and the Kenya Wildlife Service. The worst offenders, by far, are the police.

“People who deal with the police pay 10.5 bribes per person per month on average, which translates into 6.7 bribes ‘per capita’, making police officers the most frequently bribed public employees in Kenya,” it notes.

If the cops are so crooked, it would seem logical for Mr. Kibaki to begin his cleanup with them, but there are some difficulties with that. First, it’s hard to fire the entire police force and hope to avoid chaos. Plus, police tend to be armed and influential, and could make an ugly enemy for a government that’s still feeling its way. And there’s the sympathy factor: Why blame a bunch of low-paid police officers for supplementing their incomes, when far bigger fish are taking richer payoffs and getting away with it?

After the police, Transparency International lists the Public Works Department, Immigration Department, the Ministry of Lands and two city councils as more corrupt than the judiciary, but for Mr. Kibaki, the judges offered an easy target. Most got their jobs under the rampantly dishonest regime of Daniel arap Moi, who was forced to step down last year after 24 years as president. No one is going to lead a street demonstration demanding a better break for fatcat judges who have been gorging themselves at the public trough.

Mr. Kibaki’s primary concern was to make an example of someone, and soon. The World Bank, the International Monetary Fund and other important lenders have been pushing Kenya to clean up its act for a decade. Mr. Moi was skilled at making high-profile gestures that led nowhere, pledging to track down whoever it was behind the country’s long slide into mass graft, while never managing to make much of a dent. That’s because Mr. Moi was a large part of the problem, and expecting him to resolve it was like expecting O.J. to root out that dirty guy who killed his wife.

Mr. Kibaki had sworn to do better, but his early steps were halting. He named a much-respected crusader, John Githongo, as his anti-corruption czar, and launched a probe into one of the most notorious scams perpetrated under Mr. Moi, a multi-million-dollar precious metals rip-off in the early 1990s. But the probe went awry this week when the vice-chairman turned up on the list of suspended judges, and a lawyer on the inquiry accused the chairman of “protecting certain people from being adversely mentioned.”

Earlier, the government awarded $40,000 apiece to 223 Members of Parliament – eight times their inflated monthly salary – so they could buy themselves a luxury car.

Nonetheless, the signs were encouraging, and over the summer the World Bank promised to resume lending. That put the heat on Mr. Kibaki to show he was making progress, and the judges offered a chance to do so.

The question is whether he will take the next step and go after tougher culprits, including Mr. Moi. For now, the chances of that look remote. Even Mr. Githongo, who made his name out of hounding Mr. Moi, suggests the country isn’t quite ready for that big an earthquake.

“It’s important to reduce impunity,” he said some months back.

“At the same time, it’s important that the process of reducing impunity does not become perceived as a witch-hunt.”