THE ROLE OF THE JUDICIARY IN FIGHTING CORRUPTION.

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By Martha Moraa

Corruption is a moral depravity and influencing through bribery. Essentially it is the abuse of trust in the interest of private gain. It can be divided into five broad types; Transactive, extortive, defensive, and investive and nepotistic.The constituent elements of corruption are stealing and cheating. Where corruption takes the extortive form, it is stealing by force through compulsion of the victim. Where it concerns bribing a functionary, the latter is involved in theft. Corruption breeds at the top and gradually filters to the lower levels. It is not limited to any class of people and not even the highly religious, in short it has no boundaries; Corruption at the top distorts fundamental decisions about development priorities, policies and projects .It is the most serious obstacle to social and economic development because it wears down the rule of law and weakens public institutions, thereby affecting the poorer population and public services. Corruption as a threat to democracy, the rule of law and human rights should be fought on all levels and as a collaborative effort by the relevant institutions and the judiciary plays a very significant role.

The judiciary plays a vital role in the fight against corruption. One of the ways that the judiciary can win in the fight against corruption is by showing its independence in the dispensation of justice. A judiciary that is seen to be fair and independent is a vital component in sustaining peoples trust and confidence. The judiciary must not only be independent but appear to be independent. It is important that individual judges and the judiciary as a whole are impartial and independent so that those who appear before them will have confidence in getting justice. At the international level, the Bangalore Principles of judicial conduct are intended to complement the UN’s Basic Principles on the Independence of the Judiciary and the role of lawyers. The first of its principles states that’ judicial independence is a prerequisite to the rule of law and a fundamental both its individual and institutional aspects.

The judges ought to decide the cases before them in strict adherence to the law. The judges should determine cases based on evidence and the law and therefore not guided by other external factors. In this way citizens experience a working democracy and good governance. Access to justice is a central theme in our constitution by virtue of Article 43, the judiciary must act independently in ensuring that justice is served without fear or favour.Given the prevalence of corruption in Kenya, the courts in all proven cases should impose the maximum allowable sentence. We have various laws that support war on corruption such as the Constitution Chapter 6, Leadership and Integrity, Ethics and Anticorruption Commission Act 2011, Anti corruption and Economics Crimes Act, Bribery Act 2016, Public Procurement and Disposals Act among others. We have as of now enough laws and thus the courts must show aversion to corruption. Anyone who is found guilty of corruption should not be given a slap on the wrist. In countries such as China, not only do they have tough laws in combating corruption but there is also proper implementation of the laws. In April 2018, a Chinese court sentenced the former Mayor, Zhong Zhongsheng to death for taking more than US$ 160 Million in bribes in return for helping businesses obtain licenses for coal mine mergers and other projects. In the court’s ruling, Zhang was described as ‘’greedy’’ and ’’ contemptuous of rules and laws’’. The courts ought to expedite matters to prevent delays . Courts should also shun unnecessary adjournments as some litigants use this period to interfere with the cases. A consistent update on the daily monitoring of the corruption cases will also inspire public confidence.

Judges should show, promote and encourage their own personal integrity, honesty and transparency. While judicial independence forms an important guarantee, it has the potential to act as a shield behind which judges have the opportunity to conceal possible unethical behavior which majorly involves corruption. The constitution has set the bar for leadership and integrity high. Chapter 6 requires of leaders; Personal integrity, competence and suitability. Objectivity and impartiality in decision making, ensuring that the decisions are not influenced by nepotism, favoritism and other improper motives. The many allegations of rampant corruption in the judiciary is often a discouragement to the citizens who seek justice. The Judicial Service Commission must be alive in their duties in wielding the big stick against all judicial officers who are found wanting in discharging their duties. Such bodies should not be used as a scape goat by any branch of the executive to commit any act of impunity. Instead let the JSC undertake its responsibilities within the confines of the law and follow the right procedure in taking right measures against the judicial officers.

While an impartial and independent judiciary is one of the cornerstones of a democracy, the practical ways in which this is given effect are often treated with suspicion. Many a times the citizens feel as though the judges are above the law because they are the final arbiter. That in practice may not be the correct position because the judges who have been found to have committed any offence are subject to disciplinary measures .It is clear that complaints, for apprehended breach of state ethics and more particularly judicial ethics may be made by virtue of Article 258(1) of the Constitution. The particular provision states that’ ’Every person has the right to institute court proceedings, claiming this Constitution has been contravened, or is threatened with contravention’ ’In a participatory democracy it is essential that the citizens have faith in their public institutions. The citizens can only have faith in the judiciary if it shows impartiality, integrity, propriety, equality, competence and diligence. In the face of interference by any other arm of government and as the last remaining bastion of the rule of law, the judiciary should remain steadfast in protecting its independence.