One is that Judge Aaron Ringera did not give the said judges an opportunity to defend themselves. All of them are saying that this offends the rules of natural justice. There are many people who are repeating this mantra for reasons that have nothing to do with their stated concern for due process and fairness.

The first thing to accept is that the Ringera investigation was not an adjudicatory one. It was investigatory. It was never mandatory that it avail the judges the information at its disposal. It is in the nature of such investigations to be conducted in strict confidence. It beats all reason when you give your targets the opportunity to frustrate what you are probing, which is precisely what would have happened if the offending judges had been given that chance.

When a policeman is investigating you for a crime, he is not obliged to let you in on it. He would be foolish to. You might interfere with witnesses. You could even do worse. The policeman will carry out his investigation and then charge you in court. That is where, under the law, you have all the right to defend yourself. 

The policeman may wish to interrogate you in the course of his investigation. But he is not going to tell you what he considers is none of your business - as a suspect - to know. It is therefore silly to imagine he is employed to give criminals the opportunity to defend themselves. That is the business of the courts.

This has clear parallels with the Ringera investigation itself. The findings of that investigation are now the domain of the tribunals set up last week. That is the forum where the accused judges will put up their defences, if any. It is here where they will be given every opportunity to rebut the charges facing them. This point, I think, need not be laboured further. 

The other argument the judges and their defenders are using is more insidious. Why pick on them, it is being said, when everybody else, including many of the judges Ringera left out, down the line to the entire fraternity of lawyers, is corrupt? Why, indeed, are judges being targeted when those who bribe them are not?

This argument always crops up whenever the matter of fighting corruption is mentioned. But you always sense something defensive, and therefore dishonest, about this line of reasoning. And it is not simply because you can't cover a crime by protesting that the accomplice was let off.

At a certain level, what is particularly deplorable about judges or policemen taking bribes is that they are using their position of authority - and of power - to exact tribute from victims who are otherwise helpless. The victim knows his life risks being disrupted, or even destroyed, by the decisions of these authority figures. So he is actually put in a fix. 

From a purely practical viewpoint, it doesn't make sense to get jailed for five years when the person who is sending you there is willing to change his mind if you give a financial inducement. In the desperate situation you are in, you will surely pay up. You will be surprised by the numbers of perfectly decent people who pontificate against corruption but who frequently grease the hands of the traffic policeman when caught in some infraction which threatens to make them get late to work.

There is a term much used in Europe after the Second World War called ''moral equivalence''. It is used in the context where one seeks to distinguish the gravity of guilt of different perpetrators of gross crimes. Clearly, the corrupt judge and the briber are both in the wrong. But in this case who is more so? The crook who takes advantage of a corrupt system or the ogre who actually presides over this system?

The Permanent Secretary for Ethics and Governance, Mr John Githongo, likes to say that "corruption fights back". All the wild conspiracy theories now in circulation regarding the purge in the Judiciary neatly attest to that. So does the bleak and deceitful talk about how the purge has left the Judiciary in a "crisis." One is left to wonder what it is this kind of person prefers: is it to endure with this temporary "crisis," or would they rather go on with a justice system that had become a merchant's bazaar?

I still believe the accused judges made a monumental blunder when they failed to take up Chief Justice Evans Gicheru's offer that they resign and go quietly. Some judges are saying they had not been formally notified and as such did not know they were on the list until the President made it public.

I find it difficult to believe that they had not been put in the picture - verbally or otherwise - about what was pending before the expiry of the two-week deadline given by the CJ. But let's face it: there is no regulation that the CJ forewarn a judge of his pending suspension. Once the CJ is satisfied the information he has gathered is credible, all that is required of him is to communicate with the President on the establishment of a tribunal. The two-week grace period was actually a concession that the government was under no compulsion to extend.

And so the tribunals it will be. In way, they are a good thing. They will allow the ordinary Joe a fascinating insight into the workings of the Judiciary and how its corrupt members go about their business. It is going to be a real feast.

The judges who have opted to tough it out in the tribunals must face up to the risk of them actually getting prosecuted and possibly jailed if the tribunals find them criminally guilty. I have it on good authority that the Government could still make an example of some of the more notorious ones once the tribunals are over.

My only gripe with the ongoing purge is that one of the most notorious judges when it comes to corruption allegations seems to have been spared. 

On another note, former judge Samuel Oguk is sounding obscenely pleased now that he is set to be joined in the wilderness by a whole battalion of their lordships.

Mr Oguk's reported proposal for regional courts running alongside state courts is not to be taken seriously. One wants to laugh when Mr Oguk suggests he and the sacked judges be allowed to run such courts.

E-mail: gwarigi@nation.co.ke

Comments\Views about this article