By MBURU MWANGI 

Justice A.B. Shah and Justice Otieno Kwach shake hands in a gesture of reconciliation before Justice Tunoi: Appeal Court judges currently earn between Sh180,654 and Sh427,990 depending on their years of service.

Suspended judges who will face a tribunal after being named in the Ringera Report on corruption will now survive on a half salary only.

All the generous perks they enjoy, including cars, a driver and a bodyguard, will be withdrawn. 

A Law Society of Kenya council member, Mr Evans Monari, said according to the Judicial Service Commission, suspended judges should be stripped off all benefits and allowances.

"They should only retain their houses but only on humanitarian grounds and just for a certain period," said Mr Monari, who has been in private practice for 17 years. 

He said by now, the judges should have returned any government property in their hands.

Judges of the Court of Appeal currently earn between Sh180,654 up to Sh427,990 depending on their years of service. They also earn allowances of up to Sh287,590.

These include a house allowance of Sh80,000 a month, an entertainment allowance of Sh85,000, a month, and a transport allowance of Sh6,500 plus official transport.

They also get a domestic staff allowance of Sh15,600, a non-practice allowance of Sh13,000, an extraneous allowance of Sh73,000, a responsibility allowance of Sh12,000 and a medical allowance of Sh2,490 plus medical insurance.

Their counterparts in the High Court get a house allowance of Sh60,000, an entertainment allowance of Sh65,000 and a transport allowance of Sh6,200 plus official transport. They also get a domestic staff allowance of Sh15,600, a non-practice allowance of Sh13,000, an extraneous allowance of Sh55,000, a responsibility allowance of Sh10,000 and a medical allowance of Sh2,490 and a medical insurance.

The judges will now get only a half salary and this is until the tribunals investigating them complete their work. If they are found guilty, they will not only leave the Judiciary, they will also stand suspended by the Law Society of Kenya for five years, LSK chairman Ahmednasir Abdullahi said.

Yesterday, the Sunday Nation learnt that more judges were opting to resign rather than face the tribunals set up by President Kibaki on the advice of Chief Justice Evan Gicheru.

Those who had expressed an option to resign were Court of Appeal judges A.B. Shah and Abdul Lakha.

Mr Lakha handed in his retirement letter on Thursday afternoon while Mr Shah said: "I am opting to retire rather than go back to an institution that is already anathema in the eyes of the public."

Two more were also said to have followed suit. 

The Ringera report's List of Shame names 17 High Court judges, six Court of Appeal judges and 82 magistrates. Those named were given an option by the CJ "to go quietly or face the tribunals. President Kibaki has formed two tribunals, one for the Court of Appeal and the other for High Court judges. 

At the same time, the Minister for Justice and Constitutional Affairs, Mr Kiraitu Murungi said those who opted to retire will have to negotiate with the CJ for their benefits.

The minister said that the fate of the judges who opt to resign was in the hands of Mr Justice Gicheru.

He said the government will go by the CJ's recommendations on whether or not to pay the retiring judges their benefits.

He said that if Mr Justice Gicheru recommends that those who resign be paid all their benefits, then the government will go by that. If he recommends that they be not paid, they will not be paid.

"The government does not wish to interfere in the matter. But we will implement whatever the CJ recommends," said Mr Murungi.

"Ours is only to facilitate whatever the CJ decides. As a government we have a policy decision to leave the matter to the CJ," he added.

Mr Murungi was speaking on the telephone as reports came through that more judges were opting to resign rather than go through the rigours of a tribunal.

The Law Society of Kenya chairman said it supported the position that the judges who resign be paid all their benefits so as to afford a smooth transition.

"It makes sense to pay them all their benefits," said LSK chairman Ahmednassir Abdullahi to the Sunday Nation.

But Mr Monari said the government should take a very stern stand on the judges as they were facing disciplinary measures. Giving them benefits would be like rewarding gross misconduct.

Other lawyers who said said the judges should be paid their benefits were Patrick Lumumba, who is the secretary to the Constitution of Kenya Review Commission and Ms Njoki Ndung'u who is also a Narc nominated MP.

Mr Lumumba said the judges should not be stripped off all emoluments so as to enable them to survive in dignity and give practical meaning to the edict that they are innocent until proven guilty.

The judges generous salaries and perks came out of a pay review in September 2001.

In the 2001 salary increments High Court judges had their salaries doubled. Those starting out on the bench or have served for three years or less receive Sh130,000 a month plus allowances of Sh227,290. Judges with 12 or more years of service get Sh234,570 to a maximum of Sh343,320 plus allowances.

The CJ earns a salary of Sh531,650 plus a further 452,990 in allowances. It was a fourfold increase for him.

Former CJ Bernard Chunga and high court judge Samuel Oguk who vacated the bench under a cloud of disgrace are said to have been given all their retirement benefits.

But Minister Murungi said that Mr Oguk's issue of benefits has not been concluded. "The matter is still under consideration," he said.

At the same time, Mr Monari revealed that the LSK had forwarded a list of over 500 names of "clean" advocates to the CJ from which new judges and magistrates will be picked.

The list was given "at the end of the week" at the request of the CJ.

But the list contains only those lawyers who are between 35 years and 45 years. Currently, none of the judges in the court of appeal are less than 40 years. Mr Monari said the LSK wanted an energetic Judiciary and that was why the LSK forwarded names of youthful lawyers.

"Judiciary is not a home for the aged," he said.

Mr Monari said this was the first time the LSK was being consulted on the appointment of judges and magistrates.

He said an advertisement for magistrates' vacancies will be out early this week and urged lawyers to apply. 

Judges are expected to be beyond reproach from the way they speak, dress, places they visit and the people they associate with.

Like in the case of one Appellate judge, the report takes offence at a remark to an advocate "that the advocates' clients were killing his people". The judge is said to have been high-handed and rude to an advocate.

A judge may be accused of judicial misbehaviour if he goes for meals with a party or lawyer involved in a case before him. 

This is one of the charges against another Appellate judge. "The judge had a close personal relationship with counsel for one of the respondents who also doubled up as a director and acting chairman of the respondent company." 

Another Appeal Court judge is said to have been visiting premises under dispute at night and even wrote a ruling and faxed it to lawyers of one party at night.

One High Court judge is, among other things, accused of loitering in public places, drinking alcohol during working hours and entertaining his friends in his chambers instead of hearing cases.

The same judge is also accused of associating with undesirable characters. Another judge is accused of holding a harambee (fund raising function) for his politician wife at which he invited litigants while another is accused of sexual harassment. 

In another development, the chairman of the Law Society of Kenya, Mr Ahamednasir Abdullahi has said he has absolutely not doubt that the problems in the judiciary are as a result of a carefully planned long-term strategy by the government of former President Moi to weaken the Judiciary and open it to political manipulation.

In an interview with the Sunday Nation, the LSK chairman explained that "it was most unfortunate that the Moi Government adopted a policy of appointing as judges people who had all the qualities that rendered them unfit for such appointments."

According to Mr Abdullahi, a total overhaul of the mode of appointing judges is the only permanent solution to the problems of corruption, incompetence and other vices afflicting the judiciary.

City lawyer Mr Muciimi Mbaka and former publisher and editor of The Lawyer magazine is also equally categorical that the problem of corruption, laziness and general incompetence in the judiciary was a deliberate creation of the country’s political leadership.

"From around 1980, the Government adopted a deliberate policy to weaken the judiciary and undermine its independence. How do you that? By appointing judges from a cluster of lawyers and magistrates who are least qualified to hold such venerable positions in the judiciary," says Mr Mbaka. 

Other legal experts say that having a morally weakened Judiciary was part of a deliberate and systematic political strategy to ensure that the institution that provides checks and balances between a government and its subjects was in no position to play this critical role.

With a completely undermined Judiciary, not to mention other institutions such as the legislature, the executive would remain the only strong and completely unchallenged political institution in the country and thus be able to reign completely unrestrained by any other institution.

The appointment of Mr Zacchaeus Richard Chesoni as the country’s 12th Chief Justice on December 2, 1997 may be the most publicly discernible point at which the Government of President Daniel arap Moi appeared to have completely abandoned any pretence to common decency and any known rationale in the appointment of judges.

But the rot had started much earlier. According to legal experts, at the time when he was appointed Chief Justice, the late Chesoni was one person who was least qualified morally to hold the position of a High Court, let alone presiding over the entire judiciary.

Whereas he was brilliant and experienced lawyer, Justice Chesoni was a gambler with serious financial problems. Chesoni, who was first appointed as a judge of the High Court in 1974 by President Kenyatta, had a first class legal mind, in the words of lawyer and legislator, Mr Paul Muite.

But when it came to personal financial matters, Justice Chesoni was a different person altogether. His gambling ensured that he was perpetually living beyond his means long before President Moi thought of appointing him Chief Justice.

Justice Chesoni borrowed heavily from individuals, shylocks and mainstream financial institutions. This was a character trait that was not compatible with holding the position of a judge of the High Court. Yet, Chesoni remained in office even though his addiction to gambling, and the associated financial shenanigans, were well known facts to the political establishment.

Curiously, even when some members of the Judiciary and legal fraternity were grumbling about Justice Chesoni’s character and conduct, President Moi had the audacity to elevate him to the Court of Appeal in February 1983.

However, at the time the Court of Appeal was a place for honourable men and women who walked the narrow and straight professional path. The judges Justice Chesoni found at the Court of Appeal were not comfortable having him in their midst and quietly but firmly said as much.

The judges complained to the Judicial Service Commission and at the same time petitioned President Moi. On July 4, 1983, the president revoked Justice Chesoni’s appointment as an acting Judge in the Court of Appeal.

It is not clear why President Moi succumbed to pressure and revoked Justice Chesoni’s appointment to the Court of Appeal at the time. However, some legal experts postulate that perhaps Moi did not feel politically strong enough to ignore the wishes of key players in the judiciary. By the time he was rescinding his decision to have Justice Chesoni in the Appeal Court in February 1983, President Moi had hardly been in office for five years.

If the judges in the Court of Appeal who had successfully blocked Justice Chesoni from joining their bench thought they had the last laugh they were in for a double surprise some seven years later.

With President Moi now firmly in control, he was comfortable making a decision – no matter how unpopular as long as it deserved his immediate political interests – and sticking by it.

Therefore it did not come as a complete surprise when on February 19, 1990, President Moi appointed Justice Chesoni back to the Court of Appeal. Fellow judges of Appeal Court were not amused. They once again petitioned the president and complained to the Judicial Service Commission.

Upon listening to the complaint against Justice Chesoni’s appointment to the Appeal Court, the Judicial Service Commission ruled that his appointment was "inconsistent with the position, dignity and judicial integrity."

However, much as President Moi was politically comfortable and he could have stuck to his decision to have Justice Chesoni in the Court of Appeal, on May 25, 1990, President Moi nevertheless decided to revoke, for the second time, Chesoni’s appointment to the highest court on land. 

But that was not the end of the road for Justice Chesoni in terms of Government appointments. President Moi still had use for Justice Chesoni even if the Judicial Service Commission and fellow judges in the Appeal Court found Justice Chesoni lacking in personal character and probity.

Thus in October 1990 President Moi appointed Justice Chesoni – the man described by peers as lacking integrity and dignity to sit in the Appeal Court – as the person to oversee the country’s elections. You could not have had a bigger square peg in a round hole.

Despite protests that Justice Chesoni was unfit for the office of Chairman of the Electoral Commission of Kenya, President Moi stuck with him and unlike in the past, adamantly refused to revoke Justice Chesoni’s appointment this time around.

Whether he performed well or not as Chairman of the Electoral Commission is a different matter. Suffice it to say that as a good lawyer, Justice Chesoni carried out his client’s (President Moi and the Kanu Government) to the best of his abilities.

It was therefore not surprising when seven years after Justice Chesoni had first been appointed Chairman of the Electoral Commission, President Moi thought it was time to make Chief Justice the man who had been established unfit to sit in the Court of Appeal.

Like in the previous appointments in the Judiciary, protests followed Justice Chesoni’s latest appointment as Chief Justice. But this time around President Moi would not succumb to pressure; after all, he had Justice Chesoni precisely where he had wanted him to be and a clear mission for the new CJ.

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