References: Section 61 of Chapter IV of the constitution provides for the president to appoint Judges of the High Court while section 64 addresses the Court of Appeal. The other officers of the Judiciary are appointed by the Judicial Service Commission. None of these processes offer opportunities for public participation.

Peer Review Comments: This leaves room for the appointment of judges who are favorable to the president. Depending on the personality of the president and the length of time he has been in office, as was the case with Moi, the judiciary starts reflecting the character of the presidency. Given the difficulty in removing judges, it can take a very long time to reform the judiciary once rot has settled in.

References: Sections 61 and 62 of the constitution address the appointment of the Chief Justice and High Court judges, while sections 68 and 69 address the work of the Judicial Service Commission. However, appointments at the very top often appear politically contrived.

Peer Review Comments: The minimum is a Bachelor of Law degree and some experience in legal practice. These are very low qualifications, and judges with undistinguished academic records sit on the benches.

References: There is no independent review of the president's appointment of the Chief Justice or of the Judicial Service Commission's appointment of individual officers. Note that the Chief Justice is a political appointee and presides over the Judicial Service Commission. However, these are issues that have been addressed by the Draft Constitution of 2004, which has yet to be adopted.

References: While delivering judgment, the members of the Judiciary are required to make an elaborate justification of the decision, citing the case law applied or whatever other precedence might be the basis of the decision. However, decisions in the lower courts can be quite peremptory.

Peer Review Comments: The judges can sometimes take years to write their judgments. Cases of student interns writing judgments have also been alluded to in the press.

References: Always, the judgment will cite the pertinent law under which the case is being tried, especially so in prosecutions (as opposed to civil disputes). In high-profile cases where litigants have hired lawyers, judges will justify their decisions. But in the majority of cases involving the average citizen, often unrepresented by a counsel, judgments can be quite flippant.

In petty crimes, such as failing to carry a national identification card (interpreted as loitering) or drinking after hours, the accused will appear in groups in anticipation of their joint plea of guilty and have their judgments passed similarly. Besides the right of appeal - which is expensive - some outright dubious judgments have been subjected to review by senior judicial officers.

Peer Review Comments: It can sometimes take an inordinately long time for a judgment to be written by some lazy judges.

References: There is no ombudsman in the Kenyan system. However, the judicial system has its own internal disciplinary mechanism based on the Judicial Service Commission. Members of the public can report judicial misconduct to the Registrar of the High Court, while complaints against advocates can be lodged with the Advocates Complaints Commission established by the Advocates Act (Cap 16).

References: The appointments of the Chief Justice who presides over the Judicial Service Commission and of the Registrar of the High Court are highly politicized, which can compromise the objectivity of their oversight functions. While appointments to the Advocates Complaints Commission seem less politicized, this Commission is often overwhelmed with work and unable to deliver promptly.

References: While in 2003, the Chief Justice initiated a purge of the Judiciary, it has transpired that this was not done objectively; and some officers who had been sacked or suspended have since returned to office. However, while over 100 magistrates and judges had been cited for misconduct, only 20 challenged the allegations against them, reflecting the rot in the Judiciary. As for the Advocates Complaints Commission, one of its mandates is for its 25-strong team to investigate complaints received. See [ LINK ]

Peer Review Comments: The whole process is very inefficient and not transparent. There is a reluctance on the part of those investigating to pursue accusations in a systematic way. It seems that sometimes there is a wave of activity for political expediency and at other times activity is low. Due to its political history, the judiciary in Kenya is highly compromised and in dire need of an extensive overhaul.

References: There has been no other reported disciplinary action against members of the Judiciary since the controversial 2003 purge. As for the Advocates Complaints Commission, its greater problem is denying justice through delayed resolution of cases. However, it does impose penalties, such as by withdrawing the practicing licenses of errant lawyers.

Peer Review Comments: The whole process of disciplinary action is more of a public show than a genuine desire to purge the judiciary of its rot. Many advocates recognize this, and this poses a danger to clients that their advocates will act in ways that compromise their interests. Advocates know that the mechanism for disciplinary action is mostly for show and lacks teeth.

References: As public officers, judicial officers are also governed by the Public Officers Ethics Act (Cap 203).

References: As public officers, such interactions are governed by the Public Officers Ethics Act (Cap 203).

References: As with other public officer cadres, there are no clear guidelines on what is to be done with respect to the audit of asset declaration forms after these are submitted to the Judcial Service Commission.

References: There are no such legal restrictions. Indeed, judicial officers - especially the judges - are often sourced from private practice, which they leave but do not shut down during service. On departure from public service, many simply return to their private firms.

References: As noted in 34d, there are no such restrictions, with many judicial officers simply returning to their old private firms. Some of the officers who whose practicing licenses were revoked during the 2003 purge have actually or reportedly established consultancies through which junior lawyers come to them for advice on how to conduct cases.

References: As with the other branches of government, there is not an effective means of enforcing the law concerning gifts and other considerations.

References: Beyond scrutiny by the Judicial Service Commission, there is no further audit.

References: The law (Public Officers Ethics Act) does not provide for this.

References: Citizens cannot access these records.

References: Citizens cannot access these records.