VZCZCXRO1732
OO RUEHROV
DE RUEHNR #2642/01 3551155
ZNR UUUUU ZZH
O R 211154Z DEC 09
FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0205
INFO IGAD COLLECTIVE
RHMFIUU/DEPT OF JUSTICE WASHINGTON DC
RUEHFR/AMEMBASSY PARIS 0003
RUEHLO/AMEMBASSY LONDON 0003

UNCLAS SECTION 01 OF 03 NAIROBI 002642 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV KCOR KE KJUS
SUBJECT: Judges Protest Proposed Constitutional Changes, Call for 
Institutional Reforms 
 
REF: 09 NAIROBI 2475 
 
¶1.  This is an action request. Please see paragraph 12. 
 
¶2. Summary: Kenyan judges, long unpopular with citizens due to 
their status as the public face of the country's backlogged and 
inefficient justice system, are finding few sympathizers with their 
concern that provisions in the draft constitution discriminate 
against them. There are also divisions within the judiciary itself 
on the constitutional provisions and the best way forward on 
reform, although there is consensus on the need to streamline and 
modernize the Kenyan court system, as well as the need to appoint 
more judges and magistrates and to allocate additional financial 
resources to the underfunded judicial branch. If judges are not 
able to convince the Parliamentary Select Committee to cut the 
offending provisions in the draft constitution, they could join 
with other interest groups opposed to different elements of the 
constitution to lobby against it. End summary. 
 
¶3. Kenya's judges are protesting over provisions in the draft 
constitution (see 09 Nairobi 2514) that will require all sitting 
high court and court of appeal judges to resign and either submit 
to re-vetting pending reappointment, or retire.  (Note: The 
provision does not apply to the more numerous magistrates, who are 
treated as civil servants and subjects to different terms of 
employment. End note.) Calling this "discrimination against the 
judiciary," a number of high court judges are beginning outreach 
efforts seeking to amend the language in the draft constitution. 
Justice Fred Ochieng, who joined the bench in 2003 after President 
Kibaki's first election, is among the outspoken critics of the 
draft constitution's approach to judicial reform. In a recent 
meeting with Poloffs, he called the provisions hypocritical, noting 
that sitting members of parliament (MPs), who were elected by 
admittedly flawed 2007 elections overseen by a now-discredited and 
disbanded Electoral Commission of Kenya, will be permitted to serve 
out their terms under the new constitution. 
 
¶4. Ochieng also argued that the new provisions conflict with 
provisions guaranteeing judges life tenure that are contained in 
both the current and draft constitutions. He added that there is a 
legal process to remove corrupt or incompetent judges (via 
petitioning the Chief Justice), and that it is a "dangerous 
precedent" to use shortcuts instead of the law. Because the draft 
constitution's provision allows for judges who do not have enough 
years of service to receive a full pension to take early retirement 
anyway, Ochieng argued, some bad or corrupt judges will actually be 
rewarded for incompetence. Ochieng said that judges should be 
compensated for losing their legitimate expectation of lifetime 
employment or, if corrupt, sent home empty-handed. 
 
¶5. Ochieng, who is the current president of the East Africa 
Magistrates and Judges Association and who chairs the 
newly-established communications committee within the judiciary, 
also described the new constitution's approach as "very bad for 
morale," and noted the probable disruption to Kenya's overburdened 
court system would be much greater than in 2003, when a number of 
judges resigned or were forced out, because all the sitting judges 
would be subjected to revetting at the same time.  Fundamentally, 
Ochieng and his colleagues felt that revetting was discriminatory, 
could be manipulated politically to remove activist judges or those 
who made rulings against influential political or business figures, 
and was unnecessary given that legal mechanisms already exist to 
remove judges accused of wrongdoing. 
 
¶6. Poloffs also met with Justice Isaac Lenaola, the current 
chairman of the Kenya Magistrates and Judges Association. Lenaola, 
like Ochieng, joined the bench from private practice in 2003 and 
served as a member of the recently-concluded Judicial Reform Task 
Force. Lenaola stated that he thought the Committee of Experts 
(CoE) drafting the constitution should not have reopened the 
provisions on the judiciary as they were not controversial in the 
2005 Bomas and Wako drafts, and that they should have restricted 
their review to contentious issues only. But since they had gone 
ahead and done so, Lenaola continued, the CoE should try to address 
core issues that have caused a loss of public confidence in the 
judiciary. He added that he did not object to submitting to 
revetting, but felt it was important that judges be permitted to 
remain on the bench while undergoing the revetting process. That 
way, he argued, judges found to be corrupt or incompetent could be 
sent home without retirement benefits, where allowing early 
retirement of those who choose not to submit to vetting could have 
the perverse effect of rewarding the worst judges. 
 
¶7. On the proposed composition of the Judicial Service Commission 
(JSC), Lenaola said that he felt the Chief Justice should remain as 
 
NAIROBI 00002642  002 OF 003 
 
 
a member of the commission, and that the new JSC should be more 
inclusive, especially of magistrates who are responsible for the 
bulk of Kenya's civil and criminal caseload. Lenaola endorsed the 
LSK's proposal that the JSC include representatives from the 
private sector, LSK itself, and additional magistrates, and also 
agreed that Francis Muthuara, the influential head of the Civil 
Service and a close advisor of President Kibaki, should not retain 
a seat on the JSC as his presence amounts to executive branch 
interference in the judiciary. Lenaola also recommended the 
establishment of an internal peer review mechanism, empowered to 
impose sanctions, to weed out corruption and incompetence in the 
judiciary. He said there is also a need for a mechanism for 
enforcement of court rules and discipline low-level court employees 
like paralegals, clerks, and registry officials, as he thought most 
corruption (and accompanying negative impact on public opinion) 
takes place at this level, but it is very difficult under the 
current system for judges who observe this behavior (for example, 
demanding extra payments to procure documents) to get the offending 
civil service employee punished or dismissed. 
 
¶8. Lenaola said that the Supreme Court proposed in the draft 
constitution would be a welcome addition, but that the failure to 
clarify the role of the Chief Justice in the draft was a major 
oversight and needed to be corrected. He noted that it would 
greatly assist the oversight of the judiciary to both decentralize 
and delegate administrative powers from the Chief Justice to heads 
of divisions of the high court, and to provide the Registrar with a 
professional secretariat. He added (and Ochieng agreed) that the 
Registrar's office needed a complete overhaul and additional 
professional staff with skills in accounting, management, human 
resources, etc. (Note: The current Registrar, who oversees the 
day-to-day management of the entire judiciary, is a magistrate by 
profession, and she and her small staff, while well-respected, are 
overwhelmed and ill-equipped to manage the administrative and 
budgetary needs of the judiciary. End note.) 
 
¶9. Under the draft constitution, vetting of judges would be 
conducted by an Interim Judicial Service Commission (IJSC) composed 
of two retired Kenyan judges, two retired Commonwealth judges, and 
one magistrate. The IJSC will look at whether judicial candidates 
have any criminal, civil, or corruption cases filed against them 
and whether they are competent. This raises concerns for many 
judges, who have argued that anyone who wants to disqualify a 
candidate can simply file a civil suit against him, no matter how 
spurious the claim may be. Given the slow pace of the Kenyan 
judicial system, it could be months or years before a frivolous 
lawsuit would be thrown out. Judges also raised concerns about the 
requirement in the draft constitution that MPs must approve 
judicial candidates, arguing that this would compromise judicial 
independence and integrity and would make judges inappropriately 
beholden to sitting MPs, perhaps interfering with the ability to 
make impartial legal judgments against them. 
 
¶10. Ochieng and his colleagues on the communications committee 
stressed the need to create a more accountable system of work, as 
the current judicial system is not meeting the public's 
expectations. They reiterated the need for judicial institutions to 
be more efficient and better funded. Kenya currently has 66 high 
court and court of appeal judges and 282 magistrates to serve a 
population of approximately 38 million people, and lack of 
courtroom space is preventing the government from filling the three 
vacancies on the court of appeal and 23 vacancies in the high 
court. 
 
¶11. Another complaint is that the judiciary does not have 
independent control over its budget, which is currently managed by 
the Ministry of Justice. In addition, Ochieng argued, the 
judiciary's budget for FY 2009 is 1.8 billion Ksh ($23.8 million), 
or about 0.2 percent of Kenya's 760 billion ($10 billion) Ksh 
budget, while the Parliament's budget is more than 7 billion Ksh 
($92 million). Ochieng noted that in a speech at a recent seminar, 
the head judge of the ICTR noted that the international standard 
for effective judicial function is to allocate between 1.5 and 
three percent of the national budget. 
 
¶12. Action request: Partly due to concern about the provisions in 
the draft constitution, the judiciary, which has traditionally not 
been very open to accepting outside guidance, is showing an 
unprecedented willingness to engage in dialogue with donors and to 
consider reforms that would improve the overall functioning of the 
system as well as help to heal the distrust between the public and 
other stakeholders in the system and the judges and magistrates. 
Post therefore requests additional resources for the Resident Legal 
Advisor (RLA) to conduct training and bring in technical experts in 
areas like court records and systems automation, case management, 
 
NAIROBI 00002642  003 OF 003 
 
 
court administration, and judicial ethics. The RLA is already in 
negotiations with Judge Ann Williams of the Seventh Circuit Court 
of Appeal to return to Kenya and provide training and advice to 
senior judicial officials on court administration and oversight, 
and we would like to build on her engagement by bringing out other 
technical experts while the judiciary (and the Chief Justice) is 
ready to institute meaningful reforms. We also reiterate our 
request in ref A para 5 for an additional Legal Advisor, as the 
current RLA has numerous responsibilities, including 
counterterrorism-related training and engagement on piracy 
prosecutions, that do not leave sufficient time for engagement on 
judicial reform. 
 
¶13. Comment: Years of refusing to respond publicly to criticism or 
engage in dialogue with the public and civil society (this attitude 
is still embodied by Chief Justice Gicheru), coupled with the 
dismal performance of the Kenyan judicial system, has led to public 
resentment and hostility towards judges. Despite belated outreach 
efforts, there is little to no sympathy for the judges' plight even 
among court stakeholders and organizations like the Law Society of 
Kenya. However, the judges' high-level political connections may be 
sufficient to sway the CoE and/or Parliamentary Select Committee 
into making changes to the draft constitution once it reaches them 
in early January 2010. If they do not succeed in getting the 
changes they want (chiefly the removal of the revetting 
requirement), judges could join with groups opposed to other 
elements of the draft constitution (for example, Christian groups 
opposed to the retention of Muslim Khadi's courts) to lobby against 
passage of the constitution at a national referendum. On the 
positive side, the judiciary appears more willing than ever before 
to implement systemic reforms that will improve the efficiency of 
the entire court system, and we would like to take advantage of 
this opening as soon as possible given the urgency of restoring 
public confidence in the impartiality and integrity of the 
judiciary. End comment. 
RANNEBERGER