Justice (rtd) Daniel Kennedy Aganyanya may have set out to pooh pooh the 2003 radical surgery in the Judiciary, but his lamentation also helpfully exposes the rot in the institution where some judges sold justice to highest bidder.
In his book, The Judicial Purge 2003 , Aganyanya paints a picture of a Judiciary in which judges were routinely bribed with cash, land, trips abroad, holidays and even sex.
The 83-year-old judge who served for 38 years before retiring in 2012 seems to confirm accusations levelled against the Judiciary by various commentators, even as he tenaciously defends his integrity and moral courage.
Writing about the corruption and incompetence in the Judiciary before Willy Mutunga’s tenure, lawyer Ahmednasir Abdullahi argued that the removal of the Nyayo-era judges, most of whom were accused of incompetence, pandering to the Executive and corruption, was the only way to redeem the institution.
“Kenya’s Judiciary, right from the magistracy to the Court of Appeal, is in a sorry state. It is an institution that is so rotten that its stench has assumed a sense of normalcy,” Mr Ahmednasir argued.
“The Judiciary sells justice using litigants’ balance sheets as the scale. It is an institution where magistrates and judges take judicial notice that in present-day Kenya, money is mightier than the law.”
The judge’s account gives credence to this view.
While acknowledging the Judiciary’s “little failings”, Justice Aganyanya, who successfully fought allegations that he received a Sh900,000 bribe from a litigant, appears to suggest that the problem with institution is the lack of moral fibre in individual officers — which he blames on the process of appointment — and vulnerability to what he calls an extremely powerful Executive, especially during the Nyayo era.
“The Executive has very powerful people who would approach us do to all manner of things, but some of us resisted politely,” he said
One of the accusations against top judges, especially in the Kanu era, was that they served as “gate keepers” for some forces in government.
They used the Bench to protect the interests of the powerful through their judgments. Indeed, the allegation formed the basis for the removal of some judicial officers by the Sharad Rao-chaired vetting board.
Mr Justice Aganyanya says he “heard that some judges had the ear of the system”.
Some members of government used the courts to fight their political wars by approaching judges asking them to decide cases of interest in manner that would advance desired political ends.
“I was woken up while on leave one morning to go to court and make an order to bar an opposition politician from Eldoret from presenting his nomination papers during the multiparty elections in 1992, and I declined,” he writes.
A proud Tiriki man, he says he was always guided by a saying in his community warning that one should “never eat twice.”
In another instance, he reveals that a powerful politician offered to pay Sh100 million to manipulate court protocol so that judge would preside over his case, which he caused to be placed before him unprocedurally by staff in Nairobi.
The politician wanted Aganyanya to award him more than Sh1 billion (the defendant was a banker).
“I declined. That was me the Tiriki man. The approach was a very daring one, on the morning the case was to be heard.”
Deeply religious, but seemingly unforgiving, Mr Justice Aganyanya declares that he not only abhors corruption; he spoke out against it.
He cites the Robert Ouko assassination, the Julie Ward murder and the Goldenberg inquiry as some of the most sensitive cases he handled during his long career. And there were attempts to influence him to make certain decisions.
“A powerful person (who he requested us not to mention) sent a colleague to my house asking me to hang one of the accused in the Ouko case. I knew that decision would have been used to embarrass me later.”
The death of Julie Ward, a young British tourist in the Mara, has never been resolved. Investigations into the case involved a trip by judicial officers to Britain, including Judge Aganyanya.
It is while in London that a lawyer retained by Julie’s father, the indefatigable John Ward, wanted to influence him.
“Whether it was with John Ward’s knowledge or not, I cannot tell. The lawyer said I’d get free accommodation and meals for seven days in one of Ward’s hotels,” he writes.
Corruption in the Judiciary takes different forms. Mr Justice Aganyanya spoke of cases in which certain judges allowed lawyers to write judgments, some in cases they were arguing before them.
“I was shocked. A judge presides over a case and hands over the file to somebody else who was not in court to write a judgment.”
When he was at the High Court in Nakuru, he was very disturbed when he learnt that a court clerk had manipulated a judgment for a case which had proceeded to the Appeal Court with the intention of helping the complainant.
Mr Justice Aganyanya realised later that the judgment which he had delivered at the High Court had been re-written for Appeal Court hearings.
Sex is also an important tool in influencing court decisions. While practising as a lawyer, Aganyanya cites an instance where a woman he was representing disclosed that she got a favourable judgment because she had slept at the magistrate’s house the night before ruling was delivered.
Moreover, it had become normal to lobby or pass favourable judgments to get elevated.
But Justice Aganyanya is particularly bitter about the 2003 removal of judges over corruption allegations. He was among judges who had been cited as corrupt and asked to resign or face a tribunal to clear their names.
At that time, he was the principal judge of the High Court.
It was a double blow for him because the Ringera team had also recommended removal of Lady Justice Roselyne Nambuye, whom he married after the death of his first wife.
He blames his then boss, chief Justice Evan Gicheru, for keeping him in the dark about the names of judges fingered by the Ringera team.
Though he had several conversations with Justice Gicheru, the CJ never indicated to him that his name was in the Ringera report.
He accuses Gicheru of “chest thumping” about reforms in the Judiciary and harassing innocent judges to satisfy political interests.
According to the report, Aganyanya had received a Sh900,000 bribe from a litigant in a case. The complaint was made by Senior Counsel Gibson Kamau Kuria who was representing one of the parties in the dispute.
Despite being advised by many of his friends to collect retirement money, go away and keep quiet, he opted to face the tribunal where he was eventually cleared.
And he has not forgiven Dr Kuria who told the tribunal that he had relied on hearsay. “He is yet to repent. I am not God to forgive him.”
First, he says that he did not expect his name to be in the report.
He claims that he was among judges who had expressed concern about graft in the Judiciary during the tenure of Chief Justice Fred Apaloo — a Ghanaian who was in charge of the Judiciary between 1993 and 1994 — and asked the leadership to address it.
In fact, he is strongly persuaded that the process was designed to remove judges who stood against graft.
“When I found myself in the dock over matters I was the first person in the Judiciary to show concern, I formed the view that the appointment of the Ringera committee was not about ousting corrupt judges or magistrates but rather to pull out those officers perceived to be uncompromising and replace them with friends, relatives and political supporters of influential politicians.”
In the book, the judge comes across as bitter, unforgiving, one with a strong feeling of entitlement, unsettled by a heavy sense of victimhood with disability both as a cause of his pain and a shield.
For instance, he reaches this exceedingly unsettling conclusion that the main reason why he was being removed from the Bench is because he is disabled.
“This is my conviction; otherwise no person or organisation in his/its right mind remove a disabled judge from the only source of livelihood available to him and also remove his wife for alleged corruption and leave him with no direction at all.”
Quoting the Swahili saying, malipo ni hapa duniani, the Tiriki elder — he actually demanded a Tiriki oath at the tribunal — says some of his accusers have already “paid for it on this earth.”
Largely underwhelming, the book lacks the intellectual rigour, engagement and deep reflection one would associate with a top level jurist.